Griffith v. Nebraska Dept. of Corr. Servs. , 304 Neb. 287 ( 2019 )

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GRIFFITH v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 304 Neb. 287
R ev. Stephen C. Griffith and Senator Ernie
Chambers, appellants, v. Nebraska
Department of Correctional
Services et al., appellees.
___ N.W.2d ___
Filed October 18, 2019. No. S-18-569.
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 inde-
pendent 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. M aret, Judge. Affirmed.
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.
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GRIFFITH v. NEBRASKA DEPT. OF CORR. SERVS.
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Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and A rterburn, 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 car-
ried 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 revi-
sions to its Execution Protocol. The Execution Protocol is a
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regulation that sets forth the process to be followed when car-
rying 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 con-
sidering 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 follow-
ing individuals in their official capacities: Gov. John Peter
Ricketts, Attorney General Doug Peterson, and DCS director
Scott Frakes (hereinafter collectively Defendants). In the law-
suit, Plaintiffs contended that the Execution Protocol should be
declared invalid for two reasons.
First, Plaintiffs contended that because Griffith was not
given access to all the materials to which he was entitled under
§ 84-907, the Execution Protocol was adopted without com-
pliance with statutory procedures. Second, and alternatively,
Plaintiffs alleged that if “[DCS] did not prepare any drafts or
revisions of the . . . Execution Protocol and did not consult
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with anyone regarding the [Execution] Protocol,” the adoption
of the Execution Protocol violated the due process clause of the
Nebraska State Constitution.
Plaintiffs requested a declaration that the Execution Protocol
was void. They also asked that Defendants be enjoined from
carrying out any executions until a new Execution Protocol
was adopted.
District Court’s Dismissal.
Defendants moved to dismiss on the grounds that the dis-
trict court lacked subject matter jurisdiction and that Plaintiffs
failed to state a claim upon which relief can be granted.
After a hearing, the district court granted Defendants’ motion
to dismiss.
In a written order, the district court found that Plaintiffs
lacked standing to pursue the action. The district court found
that because the Execution Protocol did not affect Plaintiffs’
rights, they did not have traditional common-law standing to
challenge the validity of the regulation. The district court also
found that Plaintiffs did not fall within any of the exceptions
to the traditional common-law standing doctrine. It there-
fore dismissed Plaintiffs’ complaint for lack of subject mat-
ter jurisdiction.
Plaintiffs appealed, and we granted their petition to bypass
the Nebraska Court of Appeals.
ASSIGNMENTS OF ERROR
Plaintiffs assign multiple errors on appeal, but they can
effectively be condensed into one: that the district court erred
in finding that they did not have standing.
STANDARD OF REVIEW
[1] Standing is a jurisdictional component of a party’s case,
because only a party who has standing may invoke the juris-
diction 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
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from those of a trial court. Ritchhart v. Daub, 256 Neb. 801,
594 N.W.2d 288 (1999).
[2] Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
DeLima v. Tsevi, 301 Neb. 933, 921 N.W.2d 89 (2018).
ANALYSIS
General Principles Regarding
Doctrine of Standing.
The district court dismissed Plaintiffs’ lawsuit on the ground
that they lacked standing. Before turning to Plaintiffs’ conten-
tions that this decision was incorrect, we pause to review some
basics regarding the doctrine of standing.
[3,4] A party must have standing before a court can exercise
jurisdiction, and either a party or the court can raise a ques-
tion of standing at any time during the proceeding. Central
Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533,
788 N.W.2d 252 (2010). Standing relates to a court’s power
to address the issues presented and serves to identify those
disputes which are appropriately resolved through the judi-
cial process. See Ritchhart v. Daub, supra. The focus of the
standing inquiry is not on whether the claim the plaintiff
advances has merit; it is on whether the plaintiff is the proper
party to assert the claim. See Heiden v. Norris, 300 Neb. 171,
912 N.W.2d 758 (2018). Indeed, in considering standing,
the legal and factual validity of the claim presented must be
assumed. Id.
While the U.S. Constitution limits the jurisdiction of federal
courts to certain “[c]ases” and “[c]ontroversies,” U.S. Const.
art. III, § 2, and federal courts have interpreted that language
to impose standing requirements for the exercise of federal
court jurisdiction, see, e.g., West v. Lynch, 845 F.3d 1228
(D.C. Cir. 2017), the Nebraska Constitution does not contain
an analogous provision, see Mullendore v. Nuernberger, 230
Neb. 921, 434 N.W.2d 511 (1989). As we will discuss in more
detail below, in some cases, the Legislature provides by statute
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who has standing to pursue relief. See Schauer v. Grooms,
280 Neb. 426, 786 N.W.2d 909 (2010). In other cases, we rely
on common-law standards to determine whether a plaintiff
has standing. See Metropolitan Utilities Dist. v. Twin Platte
NRD, 250 Neb. 442, 550 N.W.2d 907 (1996) (concluding
Legislature did not supplant common-law standing doctrine by
statute). Our common-law standing doctrine, like other doc-
trines of justiciability, arises “out of prudential considerations
of the proper role of the judiciary in democratic government.”
Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531,
546, 731 N.W.2d 164, 176 (2007).
Our common-law standing inquiry generally focuses on
whether the party bringing suit has suffered or will suffer
an injury in fact. See, e.g., Central Neb. Pub. Power Dist. v.
North Platte NRD, supra. We have said that such an injury
must be “concrete in both a qualitative and temporal sense”
and that it must be “distinct and palpable, as opposed to
merely abstract.” Id. at 542, 788 N.W.2d at 260. We have
also phrased the standing inquiry as whether the plaintiff
demonstrated a “direct injury” as a result of the action or
anticipated action of the defendant and emphasized that it
is generally insufficient for a plaintiff to have “merely a
general interest common to all members of the public.”
Ritchhart v. Daub, 256 Neb. 801, 806, 594 N.W.2d 288, 292
(1999). Accordingly, in order to have standing to bring suit to
restrain an act of a municipal body, the persons seeking such
action must usually show some injury peculiar to themselves.
See State ex rel. Reed v. State, 278 Neb. 564, 773 N.W.2d
349 (2009).
Does § 84-911 Confer Standing
for “Procedural” Injuries?
Plaintiffs brought this action under § 84-911 and contend
that they have standing thereunder. Section 84-911, a provi-
sion within Nebraska’s Administrative Procedure Act, provides
as follows:
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(1) The validity of any rule or regulation may be deter-
mined upon a petition for a declaratory judgment thereon
addressed to the district court of Lancaster County if it
appears that the rule or regulation or its threatened appli-
cation interferes with or impairs or threatens to interfere
with or impair the legal rights or privileges of the peti-
tioner. . . .
(2) The court shall declare the rule or regulation invalid
if it finds that it violates constitutional provisions, exceeds
the statutory authority of the agency, or was adopted
without compliance with the statutory procedures.
Plaintiffs’ argument for standing under § 84-911 rests on
language in our opinion in Project Extra Mile v. Nebraska
Liquor Control Comm., 283 Neb. 379, 385-86, 810 N.W.2d
149, 157 (2012), in which we observed that “[g]enerally,
§ 84-911 requires a plaintiff to have common-law standing to
challenge an agency’s regulation or its threatened application”
and that common-law standing usually requires the demonstra-
tion of “an injury in fact that is actual or imminent.” Plaintiffs
claim they have suffered a loss of their right under Nebraska’s
Administrative Procedure Act to “informed participation in
the regulationmaking process” and that this qualifies as a suf-
ficient injury in fact. Brief for appellants at 11. As we will
explain, we find that Plaintiffs do not have standing based on
this asserted injury.
Plaintiffs concede that the injury they are claiming in this
case is procedural in nature. Indeed, Plaintiffs attempt to dis-
tinguish H.H.N.H., Inc. v. Department of Soc. Servs., 234 Neb.
363, 451 N.W.2d 374 (1990), a case in which we found the
plaintiffs did not have standing under § 84-911, because their
legal rights were not affected by the challenged regulations, as
governing only cases in which the substance of a regulation is
challenged. Plaintiffs, however, do not cite any authority rec-
ognizing that a party has injury-in-fact standing based solely
on a claim that a procedural right to participate in administra-
tive rulemaking was violated.
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In fact, federal courts have rejected the notion that a party
has standing to challenge government action merely because
a procedural right was violated. In Lujan v. Defenders of
Wildlife, 504 U.S. 555, 572, 112 S. Ct. 2130, 119 L. Ed. 2d
351 (1992), the U.S. Supreme Court reversed a lower court’s
decision finding that a party had standing based on a govern-
ment official’s alleged failure to follow a statutory procedure
“notwithstanding [the plaintiff’s] inability to allege any dis-
crete injury flowing from that failure.” The Supreme Court
explained that individuals have standing to enforce procedural
rights “so long as the procedures in question are designed
to protect some threatened concrete interest . . . that is the
ultimate basis of . . . standing.” 504 U.S. at 573 n.8. Years
later, in Summers v. Earth Island Institute, 555 U.S. 488, 129
S. Ct. 1142, 173 L. Ed. 2d 1 (2009), the U.S. Supreme Court
relied on its decision in Lujan to hold that individuals who
claimed they had been denied the procedural right to file com-
ments regarding certain actions by the U.S. Forest Service
did not have standing in the absence of a showing that their
concrete interests were affected as a result of the alleged pro-
cedural violation.
Following Lujan, federal courts of appeals have similarly
held that a plaintiff claiming a procedural violation suffers
the requisite injury for standing purposes only if they also
suffered “a concrete injury as a result of the disregarded pro-
cedural requirement.” Parsons v. U.S. Dept. of Justice, 801
F.3d 701, 712 (6th Cir. 2015). See, also, Iowa League of Cities
v. E.P.A., 711 F.3d 844 (8th Cir. 2013); City of Sausalito v.
O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (“we may recog-
nize a ‘procedural injury’ when a procedural requirement has
not been met, so long as the plaintiff also asserts a ‘concrete
interest’ that is threatened by the failure to comply with that
requirement”); Committee to Save the Rio Hondo v. Lucero,
102 F.3d 445, 449 (10th Cir. 1996) (“[t]o fully establish injury
in fact, a plaintiff must be able to show that a separate injury
to its concrete, particularized interests flows from the agency’s
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procedural failure”); Humane Soc. of U.S. v. Babbitt, 46 F.3d
93, 99 (D.C. Cir. 1995) (“a ‘procedural injury’ arises where
the claimant asserts a substantive injury from the denial of the
statutorily required procedure”).
We find the rule for procedural injuries set forth in the above
federal cases to be especially appropriate for claims brought
under § 84-911. Section 84-911(1) provides that the validity of
a rule or regulation may be challenged if “it appears that the
rule or regulation or its threatened application interferes with or
impairs or threatens to interfere with or impair the legal rights
or privileges of the petitioner.” As we held in H.H.N.H., Inc.
v. Department of Soc. Servs., 234 Neb. 363, 367, 451 N.W.2d
374, 377 (1990), this language requires a plaintiff challenging
the validity of a regulation under § 84-911 to “prove that he or
she is a person whose legal rights and privileges are or may be
impaired by the challenged regulation.” (Emphasis supplied.)
Requiring plaintiffs bringing claims under § 84-911 to show
that any asserted procedural injury led to a rule or regulation
that interferes with or impairs their rights gives effect to the
text of § 84-911(1).
As we described above, Plaintiffs’ argument for standing
under § 84-911 rests on a procedural injury. They cannot,
however, show that the procedural injury they assert led to a
rule or regulation that interferes with or impairs their rights.
Plaintiffs allege that DCS violated procedural requirements in
the adoption of the Execution Protocol. The Execution Protocol
sets forth how death sentences are to be carried out. Neither of
the Plaintiffs is subject to a death sentence. Plaintiffs have not
shown and neither can we discern a way in which their rights
are threatened or violated by the Execution Protocol.
Faced with the fact that the Execution Protocol itself does
not affect their legal rights, Plaintiffs attempt to find refuge in
the language in § 84-911(2), which authorizes courts to declare
rules and regulations invalid if “adopted without compliance
with the statutory procedures.” Plaintiffs contend that this
language shows the Legislature must have intended to allow
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challenges to regulations by individuals asserting the infringe-
ment of a procedural right to participate in the regulationmak-
ing process. We are not persuaded.
Section 84-911(2), to be sure, provides that a court may
declare a rule or regulation invalid if it finds it was adopted
without compliance with statutory procedures, but that subsec-
tion addresses the reasons a court may declare a rule or regula-
tion invalid. It does not speak to who may seek invalidation, as
§ 84-911(1) does. We could reach the conclusion Plaintiffs urge
only by reading meaning into § 84-911(1) that is not reflected
in its text. We do not interpret statutes in that manner. See State
v. Garcia, 301 Neb. 912, 920 N.W.2d 708 (2018).
For these reasons, we find that Plaintiffs did not have stand-
ing under § 84-911 based on their assertion that their proce-
dural rights were violated during the course of DCS’ adoption
of the Execution Protocol.
Do Common-Law Exceptions to
Injury-in-Fact Standing Apply
in Actions Brought Under
§ 84-911?
Plaintiffs argue that even if the district court correctly
determined that they did not have standing as a result of their
claimed injury to their right to participate in the regulation-
making process, they nonetheless have standing as Nebraska
taxpayers. Plaintiffs claim they have taxpayer standing for two
reasons: first, because they are seeking to enjoin the illegal
expenditure of public funds, and second, because this action
involves a matter of great public concern.
Plaintiffs’ arguments for taxpayer standing are based on
cases in which this court has, in the course of applying our
common-law standing doctrine, recognized exceptions to the
usual requirement that a plaintiff demonstrate an injury in
fact that is actual, imminent, concrete, and particularized. See,
Thompson v. Heineman, 289 Neb. 798, 814, 857 N.W.2d 731,
747 (2015) (describing taxpayer standing as “exception to
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the injury-in-fact requirement”); Chambers v. Lautenbaugh,
263 Neb. 920, 644 N.W.2d 540 (2002) (holding taxpayer had
standing to challenge illegal expenditure of public funds);
Cunningham v. Exon, 202 Neb. 563, 276 N.W.2d 213 (1979)
(holding taxpayer had standing to challenge constitutional
amendment because it raised matter of great public concern).
Furthermore, Plaintiffs correctly point out that in Project Extra
Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810
N.W.2d 149 (2012), we allowed a taxpayer to bring an action
under § 84-911 challenging a regulation that allegedly failed to
comply with a statutory duty to assess and collect taxes on the
grounds that the challenge mirrored a claim that public funds
were being illegally spent.
Defendants ask us to reconsider and overrule the portion of
Project Extra Mile holding that taxpayer standing applies in
an action brought under § 84-911. They argue that this aspect
of Project Extra Mile expanded the class of persons who may
bring a suit under § 84-911 beyond the express limits set by the
Legislature. For reasons explained below, we agree.
As noted above, the Nebraska Constitution does not contain
a provision analogous to the U.S. Constitution’s limitation of
the jurisdiction of federal courts to “cases” and “controver-
sies.” Accordingly, the Nebraska Legislature may, so long as it
acts within the bounds of other constitutional provisions, con-
fer standing that is broader than the common-law baseline. For
example, we have held that the Legislature conferred standing
on “‘[a]ny citizen of this state’” to bring a challenge under the
Open Meetings Act. See Schauer v. Grooms, 280 Neb. 426,
441, 786 N.W.2d 909, 922 (2010), quoting Neb. Rev. Stat.
§ 84-1414(3) (Cum. Supp. 2004) (emphasis omitted).
But just as the Legislature can provide for standing that is
broader than common-law standards, so too can it provide for
more specific or more restrictive standing requirements. For
example, in In re Invol. Dissolution of Wiles Bros., 285 Neb.
920, 830 N.W.2d 474 (2013), we held that the plaintiffs did not
have standing to bring an action for judicial dissolution of a
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corporation under the Business Corporation Act. Our analysis
did not turn on common-law standing principles. Instead, we
held that the text of the statute at issue allowed for such actions
to be brought by “‘a shareholder,’” but that the plaintiffs did
not qualify as such. 285 Neb. at 926, 830 N.W.2d at 479, quot-
ing Neb. Rev. Stat. § 21-20,162(2)(a) (Reissue 2012).
As we discussed above, the Legislature specifically pro-
vided who may seek relief under § 84-911(1): those whose
“legal rights or privileges” are impaired or threatened by the
challenged regulation. We stated in Project Extra Mile that
the language of § 84-911 “[g]enerally . . . requires a plaintiff
to have common-law standing . . . .” 283 Neb. at 385, 810
N.W.2d at 157. We then went on to consider whether standing
was present under a common-law exception to the usual injury-
in-fact requirement. See, also, Thompson, 289 Neb. at 814, 857
N.W.2d at 747 (describing taxpayer standing as “exception to
the injury-in-fact requirement”).
But, in fact, § 84-911 makes no reference to common-law
standing. Neither does H.H.N.H., Inc. v. Department of Soc.
Servs., 234 Neb. 363, 451 N.W.2d 374 (1990), the sole case
cited in Project Extra Mile for the proposition that § 84-911
tracks our common-law standing doctrine. Rather than incor-
porating the entirety of our common-law standing jurispru-
dence, both general rules and exceptions alike, the language
of § 84-911 is framed in injury-in-fact terms: to have stand-
ing, a plaintiff must show his or her legal rights or privileges
are or will be affected or impaired by the challenged regula-
tion. The statute does not mention exceptions. And since the
Legislature expressly limited the class of permissible plaintiffs
under § 84-911 to those who can demonstrate an injury in fact
tied to the regulation, it is not clear what authority this court
had in Project Extra Mile to expand that class of permissible
plaintiffs to include those that have standing under a common-
law exception to the injury-in-fact requirement.
If forced to defend our recognition of standing under a
common-law exception to the injury-in-fact requirement
­
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in Project Extra Mile, one might attempt an argument that
§ 84-911 is not so clearly limited to those plaintiffs who can
demonstrate an injury in fact and that this court merely con-
strued statutory ambiguity to allow plaintiffs to proceed under
a common-law exception. But even if such an argument might
have some merit in another context, it fails to reckon with
another issue we did not consider in Project Extra Mile: the
fact that § 84-911 is a waiver of the State’s sovereign immu-
nity. See, e.g., Logan v. Department of Corr. Servs., 254 Neb.
646, 578 N.W.2d 44 (1998). Our rules of construction require
us to strictly construe such statutes in favor of the sovereign
and against the waiver. See Rouse v. State, 301 Neb. 1037, 921
N.W.2d 355 (2019). This leaves no room for finding a waiver
“‘beyond what the [statutory] language requires.’” Ruckelshaus
v. Sierra Club, 463 U.S. 680, 685, 103 S. Ct. 3274, 77 L. Ed.
2d 938 (1983), quoting Eastern Transp. Co. v. United States,
272 U.S. 675, 47 S. Ct. 289, 71 L. Ed. 472 (1927).
It is certainly not the case that § 84-911 must be read
to permit suits brought by plaintiffs proceeding under only
a common-law exception to the injury-in-fact requirement.
Accordingly, our obligation to strictly construe § 84-911
against such a waiver of the State’s sovereign immunity leads
us to conclude that § 84-911 cannot be interpreted to allow
such suits. We overrule Project Extra Mile v. Nebraska Liquor
Control Comm., 283 Neb. 379, 810 N.W.2d 149 (2012), to the
extent it recognized common-law exceptions to injury-in-fact
standing in an action brought under § 84-911.
Because § 84-911 confers standing on only those individuals
who can demonstrate an injury in fact as a result of the chal-
lenged regulation, these Plaintiffs lack standing. They seek to
challenge the Execution Protocol, but they are not subject to
death sentences. The only injury in fact they claim to have
suffered is a procedural injury in the course of the regulation-
making process. As we have explained, that is insufficient to
proceed in an action brought under § 84-911.
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CONCLUSION
Our decision today does not speak to the merits of Plaintiffs’
claims regarding the adoption of the Execution Protocol or
to the Execution Protocol more generally. Instead, we find
that the district court correctly dismissed the action without
reaching the merits, because Plaintiffs lack standing under
§ 84-911 to bring the claims they have asserted. We therefore
affirm the district court’s dismissal for lack of subject mat-
ter jurisdiction.
A ffirmed.
Freudenberg, J., not participating.
Miller-Lerman, J., concurring.
Because we did not fully impose the limitations occasioned
by the waiver of sovereign immunity contained in Neb. Rev.
Stat. § 84-911 (Reissue 2014) in the case Project Extra Mile v.
Nebraska Liquor Control Comm., 283 Neb. 379, 810 N.W.2d
149 (2012), I concur in the opinion of the court and the deci-
sion that these plaintiffs lack standing.
With respect to a suitable challenge to the adoption and
substance of the “Execution Protocol,” I note that in the
defend­ants’ brief, they state, “[O]ther persons . . . with a per-
sonal stake in the application of the Execution Protocol exist:
those on Nebraska’s death row,” and “the Execution Protocol
affects only those with death sentences.” Brief for appellees
at 11,12. Thus, I understand that the defendants acknowledge
that upon a showing of relevant facts, those persons who have
received a death sentence have been impacted by the sub-
stance of the Execution Protocol.
Further, at oral argument, the defendants were asked,
“Anybody on death row can say the process was imperfect?”
to which the defendants replied, “I do think they could.” And
the defendants added, “Could someone who is impacted by
a regulation bring a challenge about a procedural violation
that they did not personally witness? And I think the answer
[would be] yes.” And finally, when asked, based on § 84-911
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under discussion, whether a death row inmate who would not
have “receive[d] notice from the Attorney General’s office that
we will soon seek a death warrant” could assert a claim, the
defend­ants replied, “I do think they could.”
Based on their position articulated in briefing and at oral
argument, the defendants indicated that death row inmates are
potential plaintiffs under § 84-911 both as to the procedure
by which the Execution Protocol was adopted and its sub-
stance. So the propriety of the adoption and substance of the
Execution Protocol may not go unchallenged.