Heist v. Nebraska Dept. of Corr. Servs. ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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- 480 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480Robert J. Heist II, appellant, v. Nebraska
Department of Correctional
Services et al., appellees.
___ N.W.2d ___
Filed September 23, 2022. No. S-20-813.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
3. Immunity: Jurisdiction. Sovereign immunity is jurisdictional in nature,
and courts have a duty to determine whether they have subject matter
jurisdiction over a matter.
4. Jurisdiction: Statutes. Subject matter jurisdiction and statutory inter-
pretation present questions of law.
5. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
6. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
which 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 from the lower court’s decision.
7. Sentences: Statutes: Time. The good time law to be applied to a
defend­ant’s sentence is the law in effect at the time the defendant’s sen-
tence becomes final.
8. Jurisdiction: Appeal and Error. Where a lower court lacks subject
matter jurisdiction to adjudicate the merits of a claim, issue, or question,
an appellate court also lacks the power to determine the merits of the
claim, issue, or question presented to the lower court.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 4809. Administrative Law: Immunity: Waiver: Jurisdiction: Declaratory
Judgments. The Administrative Procedure Act provides a limited statu-
tory waiver of the State’s sovereign immunity and confers subject matter
jurisdiction for a declaratory judgment action seeking a determination
regarding the validity of a state agency’s rule or regulation.
10. Administrative Law: Words and Phrases. The Administrative
Procedure Act defines a “rule or regulation” as any standard of general
application adopted by an agency in accordance with the authority con-
ferred by statute.
11. Administrative law. Under the Administrative Procedure Act, a rule or
regulation shall not include internal procedural documents which pro-
vide guidance to staff on agency organization and operations, lacking
the force of law, and not relied upon to bind the public.
12. Administrative Law: Jurisdiction: Declaratory Judgments: Statutes.
The Administrative Procedure Act does not confer jurisdiction for
declaratory relief concerning judicial interpretation of a statute.
13. Declaratory Judgments: Immunity: Waiver. Nebraska’s Uniform
Declaratory Judgments Act does not waive the State’s sovereign
immunity.
14. Declaratory Judgments: Public Officers and Employees: Immunity.
A declaratory judgment action against a state officer or agent seeking
relief from an invalid act or an abuse of authority by an officer or agent
is not a suit against the State and is therefore not barred by the prin-
ciples of sovereign immunity.
15. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
16. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
17. ____: ____: ____. In order for a court to inquire into a statute’s legisla-
tive history, that statute in question must be open to construction, and a
statute is open to construction when its terms require interpretation or
may reasonably be considered ambiguous.
18. Statutes. The statutory canon of expressio unius est exclusio alterius
recognizes that an expressed object of a statute’s operation excludes the
statute’s operation on all other objects unmentioned by the statute.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 48019. Sentences. Where a mandatory minimum sentence is involved, an
inmate’s parole eligibility date is calculated by subtracting the manda-
tory minimum sentence from the court’s minimum sentence, halving the
difference, and adding that difference to the mandatory minimum.
20. Statutes: Legislature: Presumptions: Intent. In construing a statute,
it is presumed that the Legislature intended a sensible, rather than an
absurd, result.
21. Statutes. Under the absurd results doctrine, a court may deviate from
the plain language of the statutory text if application of the plain lan-
guage would lead to manifest absurdity.
22. ____. The absurd results doctrine does not include substantive errors
arising from a drafter’s failure to appreciate the effect of certain statu-
tory provisions.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Robert J. Heist II, pro se.
Douglas J. Peterson, Attorney General, and Scott R. Straus
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ., and Steinke, District Judge.
Funke, J.
I. INTRODUCTION
Robert J. Heist II, an inmate in the Nebraska Department of
Correctional Services (DCS) system, appeals the dismissal of
his petition for declaratory judgment under the Administrative
Procedure Act (APA) and Nebraska’s Uniform Declaratory
Judgments Act (UDJA). Heist argues that good time credit
earned pursuant to Neb. Rev. Stat. § 83-1,107(2)(b) (Cum.
Supp. 2020) applies to an inmate’s parole eligibility date
(PED). In affirming the decision of the district court, we con-
clude that good time earned pursuant to § 83-1,107(2)(b) is
applicable only to reduce an inmate’s maximum sentence and,
accordingly, has no applicability to an inmate’s PED.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480II. BACKGROUND
1. Factual Background
On April 4, 2016, Heist was sentenced to imprisonment
for a minimum of 11 years (with a mandatory minimum of 3
years) and a maximum of 25 years in the DCS system for child
enticement. According to DCS records, Heist’s PED is March
30, 2023, and DCS’ brief on appeal gives his tentative release
date (TRD) as February 10, 2030.
Since his incarceration, Heist has been earning good time
credit under § 83-1,107. It is undisputed that the reductions
of Heist’s sentence under § 83-1,107 have been, and continue
to be, deducted from the maximum term of his sentence to
calculate the date when discharge from state custody becomes
mandatory. It further appears that, currently, no reductions have
been applied to Heist’s minimum sentence, mandatory mini-
mum sentence, or PED.
2. DCS Policy 104.08
DCS has adopted “Policy 104.08,” which is titled “Inmate
Time Calculations and Sentencing.” The stated purpose of
DCS’ Policy 104.08 is to “outlin[e] methodology for calcu-
lating inmate’s sentences.” As to procedures for inmate time
computations, Policy 104.08 notes that there are seven separate
Nebraska laws that govern the release of all inmates commit-
ted to DCS and explains that “[t]hese statutes, along with the
opinions of Nebraska courts and the state Attorney General’s
office, form the basis of all time calculations.” The first
Nebraska law identified is 2011 Neb. Laws, L.B. 191, which
Policy 104.08 describes as follows:
A. Effective March 16, 2011, LB 191 amended sections
83-1,107 and 83-1,108
1. LB 191 added an opportunity [for a committed
offender] to earn additional good time based on institu-
tional behavior. [DCS] will reduce the term of a commit-
ted inmate by three days on the first day of each month,
following a 12-month period of incarceration within
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480[DCS], during which the inmate has not been found guilty
of a Class I or Class II offense, or more than three Class
III offenses under [DCS’] disciplinary code. Reductions
earned pursuant to LB 191 shall not be subject to forfeit
or withholding by [DCS].
3. Procedural Facts
Heist filed a petition against DCS, Scott Frakes in his offi-
cial capacity as DCS director, Mickie Baum in her official
capacity as DCS records administrator, and Candace Bottorf
in her official capacity as DCS agency legal counsel (here-
inafter collectively DCS) for declaratory judgment under
the APA and the UDJA. Heist alleged that Policy 104.08
improperly withholds L.B. 191 good time from PEDs. He
also argued that Policy 104.08 is a rule or regulation for pur-
poses of the APA and is not authorized by the language of
§ 83-1,107 and Neb. Rev. Stat. § 83-1,110 (Reissue 2014).
DCS filed a motion to dismiss which, by agreement and
notice to both parties, was converted to a motion for sum-
mary judgment. Heist subsequently filed a cross-motion for
summary judgment.
In October 2020, the district court entered an order sustain-
ing DCS’ motion, overruling Heist’s motion, and dismissing
Heist’s complaint. The court concluded that it lacked jurisdic-
tion over Heist’s APA claim, because Policy 104.08 was not a
rule or regulation as defined by Neb. Rev. Stat. § 84-901 (Cum.
Supp. 2020) and the State did not waive its sovereign immu-
nity. The court further concluded that DCS was entitled to
summary judgment on the UDJA claim, because Policy 104.08
accurately outlines how sentences are to be calculated pursu-
ant to Nebraska law and Heist’s PED was correctly calculated.
Heist appeals.
Heist filed a petition to bypass review by the Nebraska
Court of Appeals, asserting the case involves an issue of first
impression in Nebraska. We granted the petition to bypass and
moved the case to our docket.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480III. ASSIGNMENTS OF ERROR
Heist assigns, restated and consolidated, that the district
court erred in (1) finding that DCS Policy 104.08 is an internal
procedural document and thus concluding that it lacked subject
matter jurisdiction over his APA claim; (2) granting summary
judgment in favor of DCS on his UDJA claim, when Nebraska
law requires application of good time credit earned under
§ 83-1,107(2)(b) to PEDs; and (3) finding that 62 inmates hav-
ing a PED after their respective TRD, which is colloquially
referred to as an “inverted sentence,” is not so absurd that the
Legislature could not have intended § 83-1,107 to be inter-
preted as applying only to the maximum sentence.
IV. STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. 1 An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. 2
[3-5] Sovereign immunity is jurisdictional in nature, and
courts have a duty to determine whether they have subject mat-
ter jurisdiction over a matter. 3 Subject matter jurisdiction and
statutory interpretation present questions of law. 4 An appellate
court independently reviews questions of law decided by a
lower court. 5
[6] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
1
Lassalle v. State, 307 Neb. 221, 948 N.W.2d 725 (2020).
2
Id.3
Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 (2019).
4
In re Estate of Brinkman, 308 Neb. 117, 953 N.W.2d 1 (2021).
5
Id.- 486 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480law, which requires the appellate court to reach a conclusion
independent from the lower court’s decision. 6
V. ANALYSIS
[7] As an initial matter, we note that the good time law to be
applied to a defendant’s sentence is the law in effect at the time
the defendant’s sentence becomes final. 7 Because Heist was
sentenced in 2016, L.B. 191 is the applicable law governing
his sentence. Prior to the enactment of L.B. 191, § 83-1,107
reduced an inmate’s sentence by 6 months for each year of
the inmate’s term. L.B. 191 amended § 83-1,107 to allow an
inmate to earn additional good time at the rate of 3 days per
month after completion of 1 year of incarceration so long as
the offender did not commit certain offenses under DCS’ disci-
plinary code. Section 83-1,107(2) now reads as follows:
(a) [DCS] shall reduce the term of a committed offender
by six months for each year of the offender’s term and
pro rata for any part thereof which is less than a year.
(b) In addition to reductions granted in subdivision
(2)(a) of this section, [DCS] shall reduce the term of a
committed offender by three days on the first day of each
month following a twelve-month period of incarceration
within [DCS] during which the offender has not been
found guilty of (i) a Class I or Class II offense or (ii)
more than three Class III offenses under [DCS’] discipli­
nary code. Reductions earned under this subdivision shall
not be subject to forfeit or withholding by [DCS].
(c) The total reductions under this subsection shall be
credited from the date of sentence, which shall include
any term of confinement prior to sentence and com-
mitment as provided pursuant to section 83-1,106, and
shall be deducted from the maximum term, to determine
the date when discharge from the custody of the state
becomes mandatory.
6
US Ecology v. State, 258 Neb. 10, 601 N.W.2d 775 (1999).
7
State v. Nollen, 296 Neb. 94, 892 N.W.2d 81 (2017).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480L.B. 191 also amended Neb. Rev. Stat. § 83-1,108 (Reissue
2014) to require that the Board of Parole reduce a parolee’s
parole term for good conduct while under parole by 10 days
for each month. Such reduction shall be deducted from the
maximum term, less good time granted pursuant to § 83-1,107,
to determine the date when discharge from parole becomes
mandatory.
As briefly discussed above, DCS inmates may accrue two
different good time credits under § 83-1,107. However, the
central issue in this case involves good time credits earned
pursuant to § 83-1,107(2)(b). As such, we decline to dis-
cuss the implications of good time credits earned pursuant to
§ 83-1,107(2)(a).
1. APA Claim
[8] Before reaching the legal import of § 83-1,107(2)(b)
and Policy 104.08, it is our duty to determine whether we
have jurisdiction over this matter. 8 Where a lower court lacks
subject matter jurisdiction to adjudicate the merits of a claim,
issue, or question, an appellate court also lacks the power to
determine the merits of the claim, issue, or question presented
to the lower court. 9
Heist argues that the district court erred in determining that
Policy 104.08 is not a rule or regulation and, thus, also in
determining that it lacked jurisdiction to adjudicate whether
the policy exceeds DCS’ statutory authority. Specifically, Heist
maintains Policy 104.08 is a rule or regulation because it
prescribes penalties, affects private rights, and sets its own
standards for calculating good time. He also maintains it has
the force of law, as shown by DCS’ “[p]ast practice” in releas-
ing approximately 300 inmates prematurely. 10 DCS disagrees,
arguing that Policy 104.08 is an internal procedural document
8
See Butler Cty. Landfill v. Butler Cty. Bd. of Supervisors, 299 Neb. 422,
908 N.W.2d 661 (2018).
9
Id.10
Brief for appellant at 11.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480that repeats the relevant statutory language about calculating
inmate sentences “nearly verbatim,” rather than sets its own
standards. 11 DCS also asserts that any past misapplication of
good time does not establish the policy has the force of law.
We find no error in the district court’s determination that
Policy 104.08 is not a rule or regulation and hold that we, like
the district court, lack subject matter jurisdiction to consider
Heist’s APA claims.
[9-11] This court has repeatedly recognized that under Neb.
Rev. Stat. § 84-911 (Reissue 2014), the APA provides a limited
statutory waiver of the State’s sovereign immunity and confers
subject matter jurisdiction for a declaratory judgment action
seeking a determination regarding the validity of a state agen-
cy’s rule or regulation. 12 This waiver applies only to a “rule
or regulation,” which the APA defines to mean “any standard
of general application adopted by an agency in accordance
with the authority conferred by statute.” 13 The APA further
provides that the term “rule or regulation” shall not include
“internal procedural documents which provide guidance to
staff on agency organization and operations, lacking the force
of law, and not relied upon to bind the public.” 14 However, it
also provides that “every standard which prescribes a penalty
shall be presumed to have general applicability and any stan-
dard affecting private rights, private interests, or procedures
available to the public is presumed to be relied upon to bind
the public.” 15
Specifically, Heist asserts that language in sections I.B.3,
I.D.3, I.E.3, I.F.5, I.G.3, and I.H.5 of Policy 104.08, calling for
good time reductions to be forfeited or withheld for miscon-
duct, prescribes penalties, and as such, he maintains that Policy
104.08 is a rule or regulation. He similarly maintains that
11
Brief for appellees at 11.
12
See Engler v. State, 283 Neb. 985, 814 N.W.2d 387 (2012).
13
§ 84-901(2).
14
Id.
15
Id.
- 489 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480language in sections I.A.1, I.F.6, I.G.3, and I.H.5, regarding
how good time can be earned and how lost good time can be
restored, affects private rights and, as such, means that Policy
104.08 must be a rule or regulation and cannot be an internal
procedural document.
Of the various sections of Policy 104.08 cited by Heist,
however, only section I.A.1 involves L.B. 191 good time. The
other sections pertain to good time under earlier statutes whose
application Heist does not challenge. As such, we focus our
discussion on section I.A.1.
Section I.A.1 essentially restates § 83-1,107(2)(b) when it
calls for inmates’ terms to be reduced by 3 days on the first
day of each month, following a 12-month period of incarcera-
tion within DCS, during which the inmate has not been found
guilty of a Class I or II offense, or more than three Class III
offenses, under DCS’ disciplinary code, and provides that any
such good time shall not be subject to forfeiture or withholding
by DCS. The only differences between the policy here and the
statute are immaterial; for example, section I.A.1 uses “NDCS”
and “will,” while the statute uses “the department” and “shall.”
Aside from these minute differences, DCS neither added any-
thing to nor removed anything from the statutory language
when restating it in the policy. As such, the purported penalties
and provisions affecting private rights that Heist points to do
not mean that Policy 104.08 is a rule or regulation. In fact, to
the contrary, they indicate that Policy 104.08 is a prototypical
internal procedural document insofar as it provides guidance to
staff by summarizing the seven statutes relevant to the release
of all DCS inmates and explaining their effect.
[12] Allowing Heist to challenge Policy 104.08 under the
APA simply because it restates statutory language that could be
seen to prescribe penalties or affect private rights would negate
our holding in Perryman v. Nebraska Dept. of Corr. Servs. 16
16
Perryman v. Nebraska Dept. of Corr. Servs., 253 Neb. 66, 568 N.W.2d 241(1997), disapproved on other grounds, Johnson v. Clarke, 258 Neb. 316,
603 N.W.2d 373 (1999).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480The plaintiff in Perryman was an inmate whom DCS initially
credited with good time when computing his PED and TRD,
even though he was sentenced to a mandatory minimum
term. 17 However, DCS later revoked these credits after the
Nebraska Attorney General indicated that DCS’ practice was
contrary to the governing statute. 18 The plaintiff sued, seek-
ing a judicial determination as to whether DCS could take
this action based on the Attorney General’s memorandum.
However, the district court found it lacked jurisdiction under
the APA, because “‘the conflict is simply one of statutory
interpretation.’” 19 We affirmed, noting that the memoran-
dum “involve[d] a matter of statutory interpretation” and that
§ 84-911’s limited waiver of sovereign immunity “does not
confer jurisdiction for declaratory relief concerning judicial
interpretation of a statute.” 20
Heist attempts to distinguish his case from Perryman by
arguing that Policy 104.08 is not a memorandum, applies to
all inmates, “does prescribe a penalty,” and exceeds the DCS’
statutory authority. 21 However, these arguments are unavail-
ing. Nothing in the APA’s definition of “rule or regulation”
suggests that a document’s denomination as a “policy” or
“memorandum” is dispositive. The same is true as to whether
the document affects all inmates or a subset of inmates.
Moreover, as we have already noted, the policy merely restates
good time calculations set forth in the statute; it does not pre-
scribe a penalty. Further, the question of whether the policy
exceeds DCS’ statutory authority is an argument on the merits
which cannot be reached under Heist’s APA claim, because
we lack subject matter jurisdiction. Thus, we agree with the
district court and conclude that Policy 104.08 is not a rule or
17
Id.
18
Id.
19
Id. at 69, 568 N.W.2d at 244.
20
Id. at 70, 568 N.W.2d at 245.
21
Brief for appellant at 12.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480regulation, because it merely recites Nebraska statute. The
limited waiver of sovereign immunity does not confer juris-
diction for declaratory relief concerning judicial interpretation
of a statute. Accordingly, the district court correctly found
that it lacked subject matter jurisdiction under the APA in
Heist’s petition against DCS, because the State did not waive
its sovereign immunity.
2. UDJA Claim
Heist also argues that the district court erred in grant-
ing summary judgment in favor of DCS on his UDJA claim,
because Nebraska law requires that good time credit earned
under § 83-1,107(2)(b) apply to PEDs. DCS counters that the
plain language of § 83-1,107(2)(c) clearly indicates that good
time earned under § 83-1,107(2)(b) is only to be deducted from
an inmate’s maximum term to determine when discharge from
state custody becomes mandatory.
[13,14] As an initial matter, we note that although the UDJA
itself does not waive the State’s sovereign immunity, a declara-
tory judgment action against a state officer or agent seeking
relief from an invalid act or an abuse of authority by an offi-
cer or agent is not a suit against the State and is therefore not
barred by the principles of sovereign immunity. 22 Heist’s peti-
tion for declaratory relief named, in addition to DCS, Frakes,
Baum, and Bottorf in their official capacities as respondents,
and asserted that each was improperly “withholding the good
time implemented by LB 191 . . . by applying LB 191 Good
Time only to [TRDs] and not to [PEDs].” As such, like the
district court, we have jurisdiction to consider the merits of
Heist’s UDJA claim, which he brought as an alternative to his
APA claim. However, upon consideration of this claim, we find
no error by the district court.
22
See, Logan v. Department of Corr. Servs., 254 Neb. 646, 578 N.W.2d
44 (1998); County of Lancaster v. State, 247 Neb. 723, 529 N.W.2d 791(1995). See, also, Burke, supra note 3.
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312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480(a) § 83-1,107
[15,16] In considering the parties’ arguments concerning
the interpretation of § 83-1,107, we apply our familiar prin-
ciples of statutory interpretation, which we briefly review
here. Two basic principles of statutory interpretation control. 23
First, statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. 24 Second, components of a
series or collection of statutes pertaining to a certain subject
matter are in pari materia and should be conjunctively consid-
ered and construed to determine the intent of the Legislature,
so that different provisions are consistent, harmonious, and
sensible. 25
[17] Ordinarily, we look no further than the text. 26 In order
for a court to inquire into a statute’s legislative history, that
statute in question must be open to construction, and a statute
is open to construction when its terms require interpretation or
may reasonably be considered ambiguous. 27
Here, like the district court, we find that § 83-1,107 unam-
biguously provides that good time reductions are deducted
from the maximum term. Subsection (2)(c) of § 83-1,107 spe-
cifically states:
The total reductions under this subsection shall be cred-
ited from the date of sentence, which shall include any
term of confinement prior to sentence and commitment
as provided pursuant to section 83-1,106, and shall be
deducted from the maximum term, to determine the date
when discharge from the custody of the state becomes
mandatory.
23
State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
24
Id.25
Id.26
Id.27
Id.- 493 -
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HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480(Emphasis supplied.) Admittedly, subsection (2)(c) does not
expressly state that good time shall only be deducted from the
maximum term, and subsection (2)(b) uses the word “term”—
rather than “maximum term”—when discussing how L.B. 191
good time may be accrued. However, contrary to Heist’s sug-
gestion, neither factor renders § 83-1,107 ambiguous.
Subsection (2)(c) of § 83-1,107 plainly states that the total
reductions shall be deducted from the maximum term. It does
not state reductions should be made from the minimum term
or the mandatory minimum term, which is tantamount to say-
ing that the reductions shall be from only the maximum term.
Moreover, subsection (2)(c) expressly states that it applies to
all “reductions under this subsection,” including those under
subsection (2)(b).
[18] The district court buttressed its conclusion regarding
the plain meaning of § 83-1,107 by referencing the statutory
canon of expressio unius est exclusio alterius, which recog-
nizes that “an expressed object of a statute’s operation excludes
the statute’s operation on all other objects unmentioned by
the statute.” 28 Specifically, it noted that § 83-1,107(2)(c)’s
provisions for deductions from the maximum term necessarily
excludes § 83-1,107(2)(b) from operating on an inmate’s mini-
mum term and, by extension, PED.
Heist maintains that this was erroneous and that the district
court should instead have adopted his interpretation, based
on the canon of in pari materia. He maintains that the district
court’s approach “creates conflict” between the various provi-
sions of the Nebraska Treatment and Corrections Act, while his
approach “harmonizes” them. 29
The district court considered Heist’s proposed interpreta-
tion based on in pari materia and properly rejected it. Heist’s
argument seems to be that because § 83-1,110(1) states that
“[e]very committed offender shall be eligible for parole when
28
Pfizer v. Lancaster Cty. Bd. of Equal., 260 Neb. 265, 272, 616 N.W.2d
326, 335 (2000).
29
Brief for appellant at 17.
- 494 -
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312 Nebraska Reports
HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480the offender has served one-half the minimum term of his or
her sentence as provided in sections 83-1,107 and 83-1,108,”
good time credit accrued under § 83-1,107(2)(b) must be con-
sidered when determining PEDs. Heist similarly maintains
that not counting L.B. 191 good time toward PEDs “creates
conflict” between §§ 83-1,107 and other provisions of the
Nebraska Treatment and Corrections Act, specifically Neb.
Rev. Stat. §§ 83-170(7) and 83-1,109 (Cum. Supp. 2020)
and 83-1,110.
[19] Heist’s arguments are unpersuasive. Section 83-170(7)
merely defines “good time” as any reduction of a sentence
granted pursuant to §§ 83-1,107 and 83-1,108 and makes
no reference to an inmate’s PED. Section 83-1,109 merely
requires DCS to manage information relevant to parole eligi-
bility, as well as good time credits, but makes no reference to
how to calculate an inmate’s PED. 30 Section 83-1,110 specifi-
cally provides that where a mandatory minimum sentence is
involved, as is the case here, an inmate’s PED is calculated
by subtracting the mandatory minimum sentence from the
court’s minimum sentence, halving the difference, and add-
ing that difference to the mandatory minimum. 31 Under these
provisions, good time reductions taken under § 83-1,107(2)(b)
would not affect an inmate’s PED unless they can be applied
to an inmate’s minimum or mandatory minimum sentence,
something which is not possible under the plain meaning
of § 83-1,107(2)(c), as we have previously discussed. Thus,
the language of § 83-1,107 can be adequately understood
when considered in pari materia with other statutes in the
Nebraska Treatment and Corrections Act. Further, although we
do not find any conflict between §§ 83-1,107 and 83-1,110,
we agree with the district court that even if conflict did exist,
the specific language of § 83-1,107(2)(c) would control over
the general language of § 83-1,110. To the extent conflict
30
See, generally, Gray v. Frakes, 311 Neb. 409, 973 N.W.2d 166 (2022).
31
State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved on
other grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
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the general. 32
Additionally, Heist directs us to Neb. Rev. Stat
§ 29-2204(6)(a) (Reissue 2016), which requires a court, when
imposing an indeterminate sentence, to advise the offender of
the time the offender will serve on his or her minimum term
before attaining parole eligibility and the time the offender will
serve on his or her maximum term before attaining mandatory
release, assuming that no good time for which the offender will
be eligible is lost. However, Heist’s argument that this statute
“assume[s] good time is used to calculate parole eligibility” is
also unpersuasive. 33 Section 29-2204(6)(a) merely requires a
court to give certain advisements to an offender when imposing
an indeterminate sentence upon that offender; it neither states
nor assumes that good time reductions are applicable to an
inmate’s minimum sentence. Thus, Heist’s assignments of error
regarding the interpretation of § 83-1,107 are without merit.
Additionally, we acknowledge that Heist urges this court
to look at the legislative history of L.B. 191 to ascertain the
Legislature’s intent and that the district court did so. However,
in order for a court to inquire into a statute’s legislative his-
tory, that statute in question must be open to construction, and
a statute is open to construction when its terms require inter-
pretation or may reasonably be considered ambiguous. 34 As
discussed above, the language of § 83-1,107 is not ambiguous
and therefore not open to construction. As such, we decline
Heist’s invitation to consider the legislative history behind
L.B. 191.
(b) Nebraska Law
Heist also maintains that the district court erred because
its interpretation of § 83-1,107 “violates” three of our earlier
32
State v. Street, 306 Neb. 380, 945 N.W.2d 450 (2020).
33
Brief for appellant at 15.
34
McGuire, supra note 23.
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Cite as 312 Neb. 480decisions, “which all state good time reductions are used to
calculate PEDs.” 35 However, a closer examination of each of
these decisions reveals otherwise.
Heist first directs us to our decision in Adams v. State. 36 In
Adams, a DCS inmate brought a declaratory judgment action
against the Board of Parole, seeking a determination that
§ 83-1,110(1) unconstitutionally usurped the board’s authority
and a declaration that he was eligible for parole. 37 In discuss-
ing § 83-1,110(1), we stated, “The Legislature has declared that
‘[e]very committed offender shall be eligible for parole when
the offender has served one-half the minimum term of his or
her sentence . . . ,’ as adjusted for good time.” 38 Heist argues
that this language indicates this court’s “clear interpretation
that the one-half reduction to the minimum term is for good
time.” 39 We disagree.
First, the plain language of § 83-1,110 makes it clear that
the phrase “one-half the minimum term” refers to the point at
which an inmate shall be eligible for parole, not to a reduc-
tion in an inmate’s minimum sentence. Second, to the extent
§ 83-1,110 references good time reductions, the plain language
of the statute states that such reductions are not applicable to
a sentence imposing a mandatory minimum term, as is the
case here. Third, and most important, our opinion in Adams
discussed § 83-1,110(1) under the conditions clause of the
Nebraska Constitution. A case is not authority for any point not
necessary to be passed on to decide the case or not specifically
raised as an issue addressed by the court. 40 In other words, our
use of the phrase “as adjusted for good time” in Adams is dicta
and is not to be interpreted as meaning this court has opined
35
Brief for appellant at 16.
36
Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016).
37
Id.38
Id. at 618, 879 N.W.2d at 22.
39
Brief for appellant at 14.
40
Mach v. County of Douglas, 259 Neb. 787, 612 N.W.2d 237 (2000).
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Cite as 312 Neb. 480that good time reductions apply to an inmate’s minimum sen-
tence or PED.
Heist also argues that the district court erred in its reliance
on Caton v. State 41 and State v. Castillas 42 to conclude that
good time reductions are not used to calculate an inmate’s
PED. We note, however, that the district court only refer-
enced Castillas and Caton to recite how PEDs and TRDs are
calculated in Nebraska. Additionally, though Heist is correct
that both cases “deal with calculating mandatory minimums
. . . and neither addresses [L.B.] 191 good time,” 43 he fails to
appreciate that those cases did not discuss L.B. 191 good time,
because the sentences at issue in those cases occurred prior
to the enactment of L.B. 191. Therefore, L.B. 191 good time
reductions would not have been available to the petitioners in
Castillas and Caton, and as such, it was not necessary for us to
discuss such reductions there.
(c) Impact of § 83-1,107(2)
Heist further argues that the district court erred in find-
ing that § 83-1,107(2) unambiguously provides that L.B. 191
good time applies only to reductions in the maximum term,
because this approach results in the “anomalous, unusual,
or absurd result” of 62 inmates currently having inverted
sentences. 44 In support of his argument, Heist points to our
decisions in Castillas and Johnson v. Kenney. 45 In Castillas,
we recognized that one of the purposes behind § 83-1,107
was to “ensure that no one would reach mandatory discharge
before reaching parole eligibility.” 46 Then, in Johnson, we
explained that it would not serve the legislative intent if a
41
Caton v. State, 291 Neb. 939, 869 N.W.2d 911 (2015).
42
Castillas, supra note 31.
43
Brief for appellant at 15.
44
Id. at 20.
45
Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002).
46
Castillas, supra note 31, 285 Neb. at 189, 826 N.W.2d at 267.
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Cite as 312 Neb. 480defendant could be mandatorily discharged before being eli-
gible for parole. 47
[20,21] In construing a statute, it is presumed that the
Legislature intended a sensible, rather than an absurd, result. 48
When possible, an appellate court will try to avoid a statu-
tory construction that would lead to an absurd result. 49 Under
the absurd results doctrine, a court may deviate from the
plain language of the statutory text if application of the plain
language would lead to manifest absurdity. 50 In that situa-
tion, a court may correct an error in a provision if failing to
do so would result in a disposition that no reasonable person
could approve. 51 However, the bar of manifest absurdity is
not easily cleared, and we have refused to apply the doctrine
if the result dictated by the plain language is not “‘so absurd
that the Legislature could not possibly have intended it.’” 52
Additionally, the absurd­ity must be able to be corrected by
changing or supplying a particular word or phrase whose
inclusion or omission was obviously a technical or ministe-
rial error. 53 The doctrine does not justify judicial revision of
a statute simply to make the statute more reasonable in the
judges’ view. 54
Though the current version of § 83-1,107(2)(c) makes clear
that good time is deducted only from the maximum sentence,
earlier versions of the statute had no such language. In fact,
prior to 1995, the statute specifically directed that good time
47
Johnson, supra note 45.
48
State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
49
Thomas v. Peterson, 307 Neb. 89, 948 N.W.2d 698 (2020).
50
Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020).
51
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 234-39 (2012), citing Cernauskas v. Fletcher, 211 Ark. 678,
201 S.W.2d 999 (1947).
52
Parks, supra note 50, 307 Neb. at 945, 951 N.W.2d at 518.
53
Scalia & Garner, supra note 51.
54
Id.
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Cite as 312 Neb. 480was to be deducted from the minimum term to determine the
date an inmate was eligible for parole and from the maximum
term to determine when discharge from the state became man-
datory. 55 However, in 1995, the Legislature passed 1995 Neb.
Laws, L.B. 371, which explicitly removed any reference to
good time being deducted from an inmate’s minimum sentence,
as well as any reference to parole. Since 1995, § 83-1,107 has
been amended on numerous occasions, but the Legislature
has never again referred to good time being applied to reduce
an inmate’s minimum sentence. Thus, the omission of those
phrases from the statute appears intentional and not a techni-
cal or ministerial error; and the absurdity Heist complains of
cannot be corrected by simply supplying the words “minimum
sentence” or “parole eligibility date” into the language of
§ 83-1,107.
[22] Further, although L.B. 191 has caused some inmates
to incur inverted sentences, such result appears to be an unin-
tended consequence of L.B. 191. The absurd results doctrine
does not include substantive errors arising from a drafter’s
failure to appreciate the effect of certain statutory provisions. 56
Thus, conceding that the DCS interpretation of § 83-1,107(2),
of which Heist complains, has produced the allegedly absurd
result of 62 inmates with inverted sentences, this falls far short
of meeting the high bar of manifest absurdity.
We are not the only court to take this view. In Chung Fook
v. White, 57 the U.S. Supreme Court upheld a provision in the
Immigration Act of 1917, which exempted wives and children
of naturalized citizens from mandatory detention upon entering
the country if they were found to be affected with a contagious
disease, but made no such provisions for wives and children of
native-born citizens. In so doing, the Court noted the oddness
55
See § 83-1,107. See, also, Von Bokelman v. Sigler, 186 Neb. 378, 183
N.W.2d 267 (1971).
56
See Scalia & Garner, supra note 51.
57
Chung Fook v. White, 264 U.S. 443, 44 S. Ct. 361, 68 L. Ed. 781 (1924).
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Cite as 312 Neb. 480of such disparate treatment, insofar as “it cannot be supposed
that Congress intended to accord to a naturalized citizen a right
and preference beyond that enjoyed by a native-born citizen.” 58
Nonetheless, it found that because the statute plainly refers to
only the wives and children of naturalized citizens, it could not
read the words “native-born citizen” into the statute without
usurping the legislative function. 59 The Court concluded that
any remedy lies with Congress, and not the courts, if the statute
unjustly discriminates against native-born citizens or is cruel or
inhuman in its results. 60
The U.S. Supreme Court has taken a similar view in other
decisions, including one decision where it specifically noted
that laws enacted with good intentions, when put to the test,
frequently, and to the surprise of the lawmaker, turn out to be
mischievous, absurd, or otherwise objectionable. 61 But in such
a case, the remedy lies with the lawmaking authority, and not
with the courts. 62
Here, L.B. 191 was enacted to allow inmates an opportunity
to earn additional good time credit. However, the application
of L.B. 191 has created inverted sentences for some inmates.
Nevertheless, because § 83-1,107(2)(c) plainly states that good
time is to be applied to reduce an inmate’s maximum sen-
tence, we cannot interpolate the words “minimum sentence” or
“parole eligibility date” without usurping the legislative func-
tion. As such, the district court did not err in failing to find
absurdity in the practical effects of L.B. 191.
VI. CONCLUSION
Policy 104.08 is not a rule or regulation for purposes of the
APA, and thus, the district court and this court lack jurisdiction
58
Id., 264 U.S. at 445.
59
Id.60
Chung Fook, supra note 57.
61
Crooks v. Harrelson, 282 U.S. 55, 51 S. Ct. 49, 75 L. Ed. 156 (1930).
62
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Cite as 312 Neb. 480over Heist’s APA claim. Moreover, the plain, direct, and unam-
biguous language of § 83-1,107 makes it clear that good time
reductions earned under this section apply to an inmate’s maxi-
mum sentence, not to an inmate’s minimum sentence and, thus,
not to an inmate’s PED. Further, to the extent Heist argues L.B.
191 has produced an unintended result, the resolution of such
unintended result is within the province of the Legislature, not
with this court. Accordingly, Heist’s assignments of error are
without merit.
Affirmed.
Freudenberg, J., not participating.