Stewart v. Heineman ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/16/2017 09:13 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STEWART v. HEINEMAN
Cite as 296 Neb. 262
Greg Stewart et al., appellees, v. Dave Heineman,
in his official capacity as Governor of
Nebraska, et al., appellants.
___ N.W.2d ___
Filed April 7, 2017. No. S-16-018.
1. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted, and
gives that party the benefit of all reasonable inferences deducible from
the evidence.
2. Attorney Fees: Appeal and Error. When attorney fees are authorized,
the trial court exercises its discretion in setting the amount of the fee,
which ruling an appellate court will not disturb on appeal unless the
court abused its discretion.
3. Summary Judgment. In the summary judgment context, a fact is mate-
rial only if it would affect the outcome of the case.
4. Justiciable Issues. A justiciable issue requires a present, substantial
controversy between parties having adverse legal interests susceptible to
immediate resolution and capable of present judicial enforcement.
5. Courts: Justiciable Issues. A court decides real controversies and
determines rights actually controverted, and does not address or dispose
of abstract questions or issues that might arise in a hypothetical or ficti-
tious situation or setting.
6. Justiciable Issues: Standing. Standing is a key function in determining
whether a justiciable controversy exists.
7. Standing: Jurisdiction. Standing requires that a litigant have such a
personal stake in the outcome of a controversy as to warrant invocation
of a court’s jurisdiction and justify the exercise of the court’s remedial
powers on the litigant’s behalf.
8. Actions: Justiciable Issues: Standing. The ripeness doctrine is rooted
in the same general policies of justiciability as standing and mootness.
As compared to standing, ripeness assumes that an asserted injury is
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sufficient to support standing, but asks whether the injury is too contin-
gent or remote to support present adjudication.
9. Actions: Jurisdiction. An appellate court uses a two-part inquiry to
determine ripeness: (1) the jurisdictional question of the fitness of the
issues for judicial decision and (2) the prudential question concerning
the hardship to the parties of withholding court consideration.
10. Declaratory Judgments. The function of a declaratory judgment is
to determine justiciable controversies which either are not yet ripe for
adjudication by conventional forms of remedy or, for other reasons, are
not conveniently amenable to the usual remedies.
11. Equal Protection: Discrimination. The injury in an equal protection
case is the imposition of a barrier that makes it more difficult for mem-
bers of one group to obtain a benefit, rather than the ultimate inability to
obtain the benefit.
12. Discrimination. When the government erects a barrier that makes it
more difficult for members of one group to obtain a benefit than it is
for members of another group, a member of the former group seeking
to challenge the barrier need only demonstrate that he or she is ready
and able to perform and that a discriminatory policy prevents him or her
from doing so on an equal basis.
13. Discrimination: Standing. For those persons who are personally sub-
ject to discriminatory treatment, stigmatizing injury caused by dis-
crimination is a serious noneconomic injury that is sufficient to sup-
port standing.
14. Standing. Standing does not require exercises in futility.
15. Actions: Moot Question. An action becomes moot when the issues
initially presented in the proceedings no longer exist or the parties lack
a legally cognizable interest in the outcome of the action.
16. Discrimination: Declaratory Judgments: Injunction: Proof. If a dis-
criminatory policy is openly declared, then it is unnecessary for a
plaintiff to demonstrate it is followed in order to obtain injunctive or
declaratory relief.
17. Actions: Moot Question. A defendant cannot automatically moot a case
simply by ending its unlawful conduct once sued.
18. Actions: Moot Question: Proof. A defendant claiming that its volun-
tary compliance moots a case bears the formidable burden of showing
that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.
19. Appeal and Error. A court’s consideration of a cause on appeal is lim-
ited to errors assigned and discussed.
20. Attorney Fees: Appeal and Error. On appeal, a trial court’s deci-
sion awarding or denying attorney fees will be upheld absent an abuse
of discretion.
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STEWART v. HEINEMAN
Cite as 296 Neb. 262
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Douglas J. Peterson, Attorney General, James D. Smith,
Ryan S. Post, and Jessica M. Forch for appellants.
Amy A. Miller, of ACLU Nebraska Foundation, Inc., Leslie
Cooper, of ACLU Foundation, Inc., and Garrard R. Beeney
and W. Rudolph Kleysteuber, of Sullivan & Cromwell, L.L.P.,
for appellees.
Robert McEwen and Sarah Helvey, of Nebraska Appleseed
Center for Law in the Public Interest, for amicus curiae
Nebraska Appleseed Center for Law in the Public Interest.
Daniel S. Volchok and Kevin M. Lamb, of Wilmer, Cutler,
Pickering, Hale & Dorr, L.L.P., and Robert F. Bartle, of Bartle
& Geier Law Firm, for amici curiae Child Welfare League of
America et al.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
I. NATURE OF CASE
The plaintiffs, three same-sex couples, sought, pursuant
to 42 U.S.C. § 1983 (2012), to enjoin the defendants, Dave
Heineman, the former Governor of the State of Nebraska;
Kerry Winterer, in his official capacity as the chief execu-
tive officer of the Department of Health and Human Services
(DHHS); and Thomas Pristow, in his official capacity as the
director of the Division of Children and Family Services,
from enforcing a 1995 administrative memorandum and from
restricting gay and lesbian individuals and couples from being
considered or selected as foster or adoptive parents. The court
ordered the memorandum rescinded and stricken and enjoined
the defend­ants and those acting in concert with them from
enforcing the memorandum and/or applying a categorical ban
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to gay and lesbian individuals and couples seeking to be
licensed as foster care parents or to adopt a state ward. The
court further ordered the defendants and those acting in con-
cert to “refrain from adopting or applying policies, procedures,
or review processes that treat gay and lesbian individuals and
couples differently from similarly situated heterosexual indi-
viduals and couples when evaluating foster care or adoption
applicants under the ‘best interests of the child’ standard set
forth in DHHS’ regulations.” The court awarded the plaintiffs
costs and attorney fees.
The defendants appeal. They do not assert that it is constitu-
tional to discriminate on the basis of sexual orientation in the
licensing or placement of state wards in foster care. Instead,
the defendants argue that the plaintiffs lack standing because
they have not yet applied for and been rejected in obtaining
a foster care license or in having a state ward placed in their
homes. Alternatively, the defendants argue that there was no
case and controversy, because the memorandum that was the
focus of the plaintiffs’ complaint ceased to be the policy of
DHHS by the time this lawsuit was filed, despite the fact that
the memorandum was never rescinded and it remained on the
DHHS website. Finally, the defendants claim that the plain-
tiffs’ lawsuit became moot when the policy memorandum was
removed from the DHHS website 3 weeks after the plaintiffs’
motion for summary judgment was filed.
II. BACKGROUND
1. Complaint
The complaint, filed on August 27, 2013, centered on an
administrative memorandum (Memo 1-95) issued in 1995 by
the then Department of Social Services, which subsequently
became DHHS in 1996. Memo 1-95 was written by the director
of the department and states in relevant part:
It is my decision that effective immediately, it is the
policy of the Department of Social Services that children
will not be placed in the homes of persons who identify
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themselves as homosexuals. This policy also applies to
the area of foster home licensure in that, effective imme-
diately, no foster home license shall be issued to persons
who identify themselves as homosexuals.
A similar policy was set forth in Memo 1-95 regarding
unmarried heterosexual couples. An addendum to Memo 1-95
directed staff not to specifically ask about an individual’s
sexual orientation or marital status beyond those inquiries
already included in the licensing application and home study.
The stated reason for the policy was this State’s intent to
place children in the most “family-like setting” when out-of-
home care is necessary. Though Memo 1-95 and the adden-
dum stated that staff would be drafting a proposed program
and licensing regulation to be brought before a public hear-
ing in a more formal manner, such proceedings apparently
never occurred.
The plaintiffs’ complaint alleged that Memo 1-95 was still “in
effect” as of April 1, 2013. It was not disputed by the defend­
ants that Memo 1-95 had not been “rescinded or replaced.”
The complaint alleged that Memo 1-95 set forth a policy
prohibiting the Department of Social Services, now DHHS,
from issuing foster home licenses to or placing foster chil-
dren with persons who identify themselves as homosexuals
or unrelated, unmarried adults living together. The plaintiffs
alleged that this policy also effectively banned homosexuals
from adopting children from state custody, because individuals
may adopt children from state care only if they have first been
licensed as foster parents.
The plaintiffs consist of three homosexual couples who
alleged in the complaint that they are able and ready to apply
to be foster parents and would do so but for the policy stated
in Memo 1-95.
One couple, Greg Stewart and Stillman Stewart, further
alleged that they were married in 2008 in California. They
alleged they had contacted DHHS in October 2012 to inquire
about obtaining a foster home license. Greg and Stillman
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alleged they were told by a DHHS representative that they
could not obtain a license because same-sex couples are barred
from becoming licensed under DHHS policy.
Another couple, Todd Vesely (Todd) and Joel Busch (Joel),
alleged that they “began the process of applying” to become
foster parents in July 2008. They completed training, a home
study, and submitted to background checks. But, in 2010,
Todd Reckling, the director of DHHS’ Division of Children
and Family Services at that time, informed Todd and Joel that
it was DHHS’ policy to bar licensing unrelated adults living
together. In their answer, the defendants admitted that Reckling
informed this couple of Memo 1-95.
The plaintiffs generally alleged that the policy expressed in
Memo 1-95 violated equal protection and due process under
the state and federal Constitutions and violated 42 U.S.C.
§ 1983 of the Civil Rights Act. They alleged that prospective
foster and adoptive parents were being subjected to differen-
tial treatment on the basis of their sexual orientation, and they
asserted that sexual orientation constituted a suspect class. The
plaintiffs asserted that there was no compelling interest, or
even a rational basis, justifying such disparate treatment. The
plaintiffs asserted that the policy found in Memo 1-95 imper-
missibly burdened their personal liberty and privacy rights to
enter into and maintain intimate personal relationships within
their own homes.
The plaintiffs asserted that they had no adequate remedy at
law to redress these wrongs, which were of a continuing nature
and would cause irreparable harm. They prayed for a declara-
tion that the policy stated in Memo 1-95 is unconstitutional,
void, and unenforceable, and an order enjoining the defendants
from enforcing Memo 1-95.
In addition, the plaintiffs asked for an order “directing
Defendants to evaluate applications of gay and lesbian individ-
uals and couples seeking to serve as foster or adoptive parents
consistently with the evaluation process applied to applicants
that are not categorically excluded.”
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Finally, the plaintiffs asked for attorney fees and further
relief as the court deemed proper.
The defendants alleged as affirmative defenses that the
plaintiffs had failed to state a cause of action and that the
defendants had not violated any of the plaintiffs’ constitutional,
civil, or statutory rights. The defendants did not affirmatively
allege that Memo 1-95 was no longer in effect or enforced.
2. Motions Below
The defendants moved to dismiss on the grounds that on the
face of the complaint, the plaintiffs lacked standing and stated
no claim upon which relief could be granted. The court over-
ruled the motion to dismiss.
On the issue of standing, the court relied upon Gratz v.
Bollinger1 for the proposition that the injury in fact in an equal
protection case is the denial of equal treatment resulting from
the imposition of a barrier, not the ultimate inability to obtain
the benefit. Under Gratz, the plaintiffs need only show they are
“‘able and ready’” to apply for a benefit should the discrimi-
natory policy that prevents them from doing so be removed.2
The court concluded that because the plaintiffs alleged they
were able and ready to apply for foster care licenses, their
complaint sufficiently alleged standing.
On the issue of failure to state a claim, the court first
observed that nothing in Nebraska law sets forth a policy pro-
hibiting homosexuals or unmarried couples from fostering or
adopting.3 It then concluded that the allegations of disparate
treatment were sufficient to state causes of action under equal
protection and due process.
On December 11, 2014, the defendants moved for sum-
mary judgment. On January 27, 2015, the plaintiffs filed
1
Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257
(2003).
2
See id., 539 U.S. at 262.
3
See Neb. Rev. Stat. §§ 43-101, 43-107, and 43-109 (Reissue 2016).
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a cross-motion for summary judgment. On October 16, the
plaintiffs moved for attorney fees. The court’s orders on these
motions are the subject of the current appeal.
3. Evidence at Summary
Judgment Hearing
In support of their motion for summary judgment, the
plaintiffs submitted affidavits in which they generally con-
firmed the truth of their factual allegations made in the com-
plaint. The plaintiffs expressed their desire to serve as foster
parents and “be subject to the same approval process that is
applied to heterosexuals and not be subject to any discrimi-
natory approval process based on our sexual orientation.”
Greg and Stillman clarified they no longer live in Nebraska,
but that they still wish to adopt a Nebraska child out of fos-
ter care. Numerous exhibits, including the transcripts of the
depositions of several DHHS employees, were also entered
into evidence.
(a) Todd Reckling
Reckling was the director of the Division of Children and
Family Services of DHHS when Todd and Joel were com-
municating with DHHS about the then almost 2-year delay in
making any licensing or placement decision since Todd and
Joel had completed all the necessary training and background
checks. A letter written in June 2010, by Reckling to Todd and
Joel, was entered into evidence.
Reckling wrote to Todd and Joel that DHHS policy “allows
for an exception” which would have to be made in order for
either one of them to foster a child, given that they are two
unmarried individuals living together. Reckling gave no indica-
tion that such an exception would be made in their case. Even
if such an exception were made, Reckling explained, a child
could not be placed jointly with or adopted jointly by Todd
and Joel. Reckling explained that “‘second parent adoptions’”
were not permitted by a second person who is not married to
the first and that Todd and Joel could not marry, because the
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Nebraska Constitution states that only marriage between a man
and a woman shall be recognized in Nebraska.
(b) Kerry Winterer
Todd and Joel were subsequently in contact with Winterer,
who has been the chief executive officer of DHHS since July
2009. Winterer sent a letter to Todd and Joel’s attorney in
November 2011, which was also entered into evidence. By
that time, Todd and Joel had waited over 3 years to foster a
child. In the letter, Winterer repeatedly cited to Memo 1-95.
Winterer explicitly stated that “Policy Memorandum # 1-95 is
still in force.”
But in his deposition taken in July 2014, Winterer deferred
to Pristow, the director of the Division of Children and Family
Services for DHHS at that time, regarding the precise details
of the then-current policy and the reasons for it. He noted that
Pristow’s practice permitted placement with homosexual appli-
cants as long as their placement was approved by Pristow in
his capacity as director.
Winterer testified that he could imagine no reason for this
extra layer of review and approval except to ensure there was
no bias against persons who identify themselves as homo-
sexual. However, he also noted that because the Nebraska
Constitution does not recognize marriage between two persons
of the same gender, homosexual couples who have married in
another state would be considered as cohabitating, unrelated
adults. Winterer then elaborated that there are “stability” con-
cerns in placing children with cohabitating, unrelated adults.
Winterer stated that the current regulations do not allow for
both adults in a cohabitating, unmarried relationship to hold
a joint license and that there can only be one license issued
per address.
Winterer testified he did not believe identifying as homo-
sexual was relevant to that person’s qualification as a foster
or adoptive parent, but that he could envision sexual orienta-
tion being a factor in the best interests analysis, in the event
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it could cause a problem with the relationship between the
biological parent and the foster parent.
Winterer stated that Memo 1-95 was “modified by practice
and . . . the policy of the current director.” Winterer thought
that Memo 1-95 was still used in DHHS training materi-
als. Nevertheless, he believed new employees were “informed
about what the current practice is and the current process in
terms of dealing with applicants.” He was “assuming that [the
new practice] has been communicated to [the caseworkers
and supervisors in the service areas] through one means or
another.” He testified that there was no documentation of any
new policy or practice.
With regard to the failure to formally rescind Memo 1-95,
Winterer said, “I think our attitude would be it’s probably
unnecessary because policy evolves and is the expression of
practice and policy of the director, who is in charge of mak-
ing policy for the division under which this falls.” He also
thought it was “probably unnecessary” to rescind Memo 1-95,
which “goes back 20 years and was issued by a director of a[n]
agency that no longer exists.” He did not specifically discuss
any possible distinction between “policy” and “practice.”
Finally, Winterer explained that there “may be, shall we
say, some . . . implications” in formally rescinding Memo
1-95. Winterer stated that rescinding Memo 1-95 “could
draw attention on the part of certain individuals in the state
of Nebraska to . . . the issue of gay marriage and some other
. . . sensitive issues” and that it could increase scrutiny and
“complicate our going about doing our business.” He elabo-
rated that he was concerned formal rescission of Memo 1-95
could result in elected officials taking actions that would
make it difficult for DHHS to place children with homo-
sexual applicants.
(c) Thomas Pristow
In March 2012, Pristow took over Reckling’s position of
director of the Division of Children and Family Services for
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DHHS, and remained in that position at the time his deposi-
tion was taken in September 2014. In his deposition, Pristow
indicated that it was his “understanding” that the same licens-
ing restrictions existed for single, cohabitating, unmarried,
married, heterosexual, or homosexual applicants, even before
he adopted any policies or procedures with regard to homo-
sexual applicants. He was speaking in terms of a single license,
however, and not the ability to obtain a joint license. An email
from 2012 indicates that legal advisors before Pristow’s tenure
had opined that Memo 1-95 could not be enforced as to licens-
ing, because the regulations concerning licensing are silent on
the sexual orientation of the applicant.
But licensing is different than placement. While a child
generally cannot be placed in a nonlicensed home, having
a person licensed in a home does not mean a child will be
placed there.
Sometime in the summer of 2012, Pristow verbally instructed
his service area administrators and his deputy director that
homosexual applicants could be considered for foster or adop-
tive placements. Pristow did not specifically address whether
this was a change in “policy” versus a change in “practice,”
though most of the questions and answers referred to “policy.”
Pristow’s placement protocol, hereinafter referred to as the
“Pristow Procedure,” set forth different procedures for homo-
sexual applicants than for heterosexual applicants. When a
caseworker recommends a placement in the home of a mar-
ried, heterosexual couple, that placement is effective if the
caseworker’s supervisor agrees with the recommendation.
But, under the Pristow Procedure, as described by Pristow,
if the caseworker recommends a placement in the home of a
homosexual couple or individual, then the placement recom-
mendation can only take effect after being approved by the
caseworker’s supervisor, the service area administrator, and,
finally, Pristow himself. Other DHHS employees clarified that
as to homosexual applicants under the Pristow Procedure there
are actually five layers of placement review: the caseworker,
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the caseworker’s supervisor, the administrator, the service area
administrator, and then the director (Pristow).
According to Pristow, the protocol for an unmarried hetero-
sexual adult living with another adult—or for a married, het-
erosexual felon—would require only three levels of approval:
the caseworker’s, the caseworker’s supervisor, and the service
area administrator’s approval to effect the placement recom-
mendation. Other DHHS employees clarified that this would be
four levels of approval, as it would include the administrator.
Such applicants would not require Pristow’s approval.
Pristow explained that there was no category of appli-
cants, other than homosexuals, that required Pristow’s personal
approval before a caseworker’s placement recommendation
could be implemented. And Pristow clarified that he did not
review denials of placement with homosexual applicants. He
only reviewed recommendations for placement.
Pristow testified that there was no reason, with respect to
child welfare, that a person who identifies as homosexual, or
that unmarried persons living together, should be treated dif-
ferently than heterosexual, married persons in the licensing or
placement of a child in a foster or adoptive home. He said that
in his 20 years of experience in children and family services,
“gay and lesbian foster parents do just as good on — if not bet-
ter than regular foster parents, everything being equal.” Pristow
agreed that there was a consensus in the scientific literature
that the outcome for children was not adversely affected by
being raised by homosexual persons, and he said that he had no
reason to doubt that consensus.
Pristow explained that Nebraska was a conservative state
with a constitutional amendment banning gay marriage. He
“take[s] that into account when [he] make[s] these type[s]
of placements.” When asked how he takes that into account,
Pristow explained, “I make it my decision and not the field’s.”
Pristow explained that when reviewing placement recom-
mendations with homosexual applicants, he did not consider
the sexual orientation of the recommended foster or adoptive
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parent in making his decision. The applicant’s sexual orienta-
tion was only relevant insofar as it was the triggering factor of
the extra layer of review.
But Pristow also indicated that Nebraska’s laws and the
constitutional amendment regarding homosexual couples were
somehow taken into account in his decisonmaking:
I do work for the State, and I am supportive of its laws
and its amendments to the constitution. And I take that in
balance when I, you know, make those type[s] of deci-
sions about placing children in gay and lesbian foster
homes. . . .
....
. . . [T]his is a conservative state, and I’m cognizant
of that, and I want to make sure that I — that my process
is — has foundation, and that, again, it reflects what the
best interest of that child is . . . .
Pristow, however, denied that he took a “harder look” at
placements with homosexual applicants. And he stated that
he had no reason to doubt the competency of caseworkers
and their supervisors in making best interests decisions. He
explained that it is just “a process so that I can take on the
responsibility of making that decision from the field so that
these placements can be made in accordance with the best
interests of the child.”
Pristow acknowledged that, as of the time of the deposi-
tion in September 2014, Memo 1-95 was still on DHHS’
website and that there was nothing in writing on the website
or elsewhere disavowing the policies stated in Memo 1-95.
To the contrary, it was his understanding that Memo 1-95 was
included in the packet of administrative memorandums that
was given to new trainees as they enter into the system.
Neither was there anything in writing, to his knowledge,
reflecting the Pristow Procedure. But Pristow said that, as new
trainees go out into the field, they are supposed to be told of
it. Pristow was unsure exactly how thoroughly this was done.
He explained:
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As the new trainee goes out to the field, either through
a mentoring protocol that we have or through [his or her]
new supervisor, there is — they are — they begin to learn
the practice of how we do child welfare in Nebraska. And
as this would come up or when it does come up, they are
told of the protocol that I put — the policy that I put in
place verbally.
....
. . . I can’t speak to whether [a caseworker, when
approached for the first time by a homosexual applicant]
would know [Memo 1-95 is no longer the current prac-
tice]. My instructions were to the service area administra-
tors when I gave my verbal policy out, and my direction
was to make sure that it was disseminated throughout
the field.
Pristow agreed that there “might be some confusion” for new
employees as to whether Memo 1-95 is still DHHS’ policy and
practice, but he believed “the field is very competent, very
competent in making sure that information is disseminated and
that we look out for the best interests of the child and we find
the best possible placement for that child regardless of gender
— or of orientation.”
Pristow acknowledged that four new service area adminis-
trators had been hired or promoted into that position since the
summer of 2012 and that he did not have a specific discus-
sion with those new service area administrators regarding his
verbal policy. Pristow said, “The general intent and theme of
what I wanted to have happen, though, I’m sure was conveyed
through the deputy and in some manner or form as we went
through the years.”
Pristow testified that it was within his authority to send out
a notification to all staff stating that Memo 1-95 no longer
represents DHHS policy. He had chosen not to do so. Pristow
testified that Memo 1-95 was “still on the website and it’s still
in play.” He explained “it hasn’t been rescinded except through
verbal instructions by me to my service area administrators.”
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There was “nothing on the website that would indicate [Memo
1-95 is] no longer policy.”
Pristow agreed that a prospective applicant could look at the
website and be discouraged by Memo 1-95 from applying to
be a foster or adoptive parent. Pristow testified that he delib-
erately determined to keep Memo 1-95 on the website and in
DHHS’ training materials, and to have the Pristow Procedure
be verbal only. Pristow could think of no instance other than
Memo 1-95 wherein DHHS has had an administrative memo-
randum on its website setting forth a policy that is not, in actu-
ality, DHHS’ policy and practice.
(d) Other DHHS Employees
The depositions of two deputy directors at DHHS, a policy
administrator, a field operations administrator, and five serv­
ice area administrators were also entered into evidence for
purposes of the summary judgment motions. At the time the
depositions were taken, in October and November 2014, Memo
1-95 was still on the DHHS website. Tony Green, a deputy
director at DHHS, testified that it is DHHS’ general prac-
tice to update memorandums as needed and that, typically, a
memorandum that no longer represents DHHS policy would be
removed from the website. The decision to remove or keep a
memorandum from the website would be made by the director
and the chief executive officer.
No other employee opined with any certainty as to the stan-
dard procedure for memorandums that cease to represent DHHS’
policy or procedure. However, a copy of a DHHS web page
listed, under the broad category of “Archived Administrative
& Policy Memos,” the subcategories of “Rescinded Memos”
and “Rescinded and Replaced Memos.” Memo 1-95 was not
listed under either of those categories. The web page set forth
that it was last updated on February 6, 2015.
None of the employees deposed were aware of anything in
writing on the website or elsewhere, informing staff and poten-
tial applicants that Memo 1-95 no longer represented DHHS’
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policy or its practice. Neither were any of the employees aware
of anything in writing contradicting Memo 1-95 by expressly
stating that homosexuals were permitted to serve as foster or
adoptive parents.
The employees described Memo 1-95 as still the current
“policy,” but stated that it did not represent the current “prac-
tice.” According to these employees, Memo 1-95 had not been
“rescinded” or “modified” by the director, thus it was still
“in effect,” or “active.” They all agreed it was not followed,
however. The witnesses were unaware of any other instance
where DHHS practice was in conflict with an existing pol-
icy memorandum.
A field operations administrator for DHHS described the
Pristow Procedure as “granting an exception on [an] existing
memo.” And a document was entered into evidence that had
been created in August 2014 by Nathan Busch, a DHHS policy
administrator, listing the “Placement Exceptions by Director”
from July 2013 to August 2014. Numerous such exceptions
listed the “Type of Exception” as “Same-Sex Couple.”
The DHHS employees uniformly described the current prac-
tice as having five layers of approval for placement of a foster
child in the home of same-sex couples or individuals who
identify as homosexual. These layers consist of the original
recommendation for placement by the caseworker and then
approval by the caseworker’s supervisor, the administrator, the
service area administrator, and, finally, the director. The DHHS
employees testified that felons and unmarried, unrelated adults
also require extra layers of approval, but only four. Only homo-
sexual applicants required the approval of the director.
According to Kathleen Stolz, a service area administrator,
Reckling had required director approval of all placements with
unmarried couples. And Stolz stated that “we no longer needed
to send for approval for placement in an unmarried, unrelated
home to the director unless there was a self-disclosure that
they were in a same-sex relationship or were gay or lesbian.”
The employees believed that under the Pristow Procedure,
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sexual orientation was not to be taken into account in a best
interests analysis.
The employees testified that during training, new DHHS
hires are no longer given a physical copy of Memo 1-95, or
of any of the policy memorandums. Instead, trainees are noti-
fied of where to locate the administrative memorandums on
the website. There was no indication during new employees’
classroom training that Memo 1-95 is no longer to be followed.
The employees explained that the Pristow Procedure is
instead discussed in the field during mentoring of new case-
workers, as well as through “word-of-mouth” within the serv­
ice areas. DHHS also holds monthly meetings of service area
administrators, and one or two caseworkers or supervisors from
each service area attend those meetings. The Pristow Procedure
is discussed at these meetings whenever there are new service
area administrators.
One DHHS deputy director explained that dissemination of
the Pristow Procedure is always verbal, “[b]ecause we have a
current policy on the — on the issue.”
A service area administrator testified that when asked about
the status of Memo 1-95 by DHHS staff, she responds that it is
on the website; it is “still an administrative memo, and it’s still
in effect.” She does not explain the Pristow Procedure unless
specifically asked about it.
None of the employees deposed could state with certainty
that all DHHS employees were aware of the Pristow Procedure.
However, none were specifically aware of any current confu-
sion as to the Pristow Procedure within DHHS.
As to dissemination of the current practice to the approxi-
mately 40 agencies that DHHS contracts with to provide foster
care services, the DHHS employees explained that there are
regular meetings with such agencies. There was testimony
that the Pristow Procedure was discussed in at least one of
those meetings.
But, again, the employees were uncertain whether every
contractor knew of the Pristow Procedure. One service area
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administrator believed there was still confusion within outside
contracting agencies about DHHS policy and practice as con-
cerns placement with homosexual applicants.
The employees agreed that there is a need for more foster
parents and that there are no child welfare interests served by
excluding homosexual applicants or by requiring extra layers
of approval for placements with homosexual licensees. The
employees conceded that Memo 1-95 could deter prospective
homosexual foster and adoptive parents from pursuing foster
care or adoption.
According to the DHHS employees, the approval was gen-
erally described as strengthening the placement decision as
being in the best interests of the children placed within homes
of homosexual foster parents—in the event that a particular
placement became an “issue.” Busch was unsure exactly what
the reason was, but believed Pristow was “referring to the fact
that there is a written policy in place that he does not support
the practice of.”
(e) Internal Communications
Internal email correspondence from June 28, 2012, to June
4, 2013, was also offered by the plaintiffs and admitted into
evidence in support of their motion for summary judgment.
The emails were submitted as evidence of the lack of dissemi-
nation and clarity surrounding the Pristow Procedure and the
continuing validity of Memo 1-95.
In an email dated June 29, 2012, a DHHS employee
expressed that he and any contractor needed to follow Memo
1-95 until that policy is changed. And in correspondence with
a contracting agency, he explained that the likelihood of place-
ment with a same-sex couple was “small as the adults in that
home would need to be the best possible placement for a spe-
cific child and [the Division of Children and Family Services]
would need to take the request to make the placement all the
way to Central Office and get [its] agreement.”
In various other emails in the months following the
announcement of the Pristow Procedure, employees appeared
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to be aware of the Pristow Procedure, but asked for clarifi-
cation on the details. In July 2012, Marylyn Christenson, a
DHHS resource development supervisor, expressed confusion,
in light of Memo 1-95, about whether homosexual applicants
could be licensed. This communication took place because a
contracting agency was also confused. Still, Christenson stated
that she knew placement approval for a homosexual applicant
would have to be from the director. She opined that “we would
need to tell these [homosexual individuals interested in foster-
ing] that [any placement will require director approval] so they
know before they go to the trouble to get [licensed].”
In September 2012, a different contracting agency asked
for clarification as to whether same-sex couples could foster,
given that the “memo from the 90’s seems to be in [e]ffect.”
Pristow personally responded to this email, explaining that
DHHS’ legal department advised that DHHS cannot deny a
license to applicants who meet the regulations, which do not
touch upon sexual orientation. But Pristow also explained
that licensing “does not guarantee placement as the place-
ment would need my prior approval before the placement
could occur.”
In October 2012, the employee of yet another contract-
ing agency still believed that neither party of a same-sex
couple could be licensed to foster. A DHHS employee told
that employee that one member of the same-sex couple could
be licensed, but the DHHS employee was unable to answer
the agency’s questions regarding what factors were involved
in the placement decision for a licensed member of a same-
sex couple.
In November 2012, Christenson expressed in an email her
belief that Memo 1-95 was “still in force since it’s on the
website.” Stolz responded that she thought Memo 1-95 had
been removed from the website, but that she would follow up.
Christenson responded that she “didn’t know an Admin memo
could be removed, w/out a replacement, or notice. It’s been
confusing to follow how they are handling that memo.”
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When, after discussion with Stolz, the resource developer
administrator emailed Christenson that they would be going
ahead with licensing one of the applicants who is in a same-
sex relationship, Christenson stated that “no one has clearly
explained to me how we can license a home when [Memo
1-95] is still in effect.” Further emails between Christenson and
other employees discussed being unwilling to license homosex-
ual applicants, apparently despite communications from their
supervisors to do so. An email to Christenson from a DHHS
resource developer explained that she was “not comfortable
going against policy” and that others should know that Memo
1-95 “which clarifies the policy has not been rescinded so . . .
it is basically against policy [to license homosexual applicants]
at this point.”
In November 2012, Busch stated to the service area admin-
istrators that he had been receiving some inquiries about the
status of Memo 1-95. He clarified that Memo 1-95 was “still
active and has not been rescinded. An exception to [Memo
1-95] must be granted by Director Pristow.”
There was testimony that up until approximately September
2014, Christenson and other staff were placing “holds” on
all licensed homes where homosexuals or unmarried couples
resided. When a home is on hold, no placements can be made
in the home until the hold is lifted. These holds were appar-
ently meant to “trigger the staff to know that they needed to
have either service area or director approval prior to the place-
ment to ensure that we were following current practice.” After
Stolz became aware of the practice of putting these homes on
hold, it ceased.
(f) Answers to Interrogatories
In the defendants’ answers to interrogatories, they described
that it was DHHS’ “policy” to allow only one license per
address and to allow a joint license only for married couples.
With regard to placements of wards when the foster parent
is unmarried and there are other adults living in the home, the
defendants explained:
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[P]lacement of wards when the foster parent is unmarried
and there are other adults living in the home if:
• The ward is related to the foster parent by blood or
adoption
• The ward is a former foster child of the foster parent
• The foster parent is the legal guardian of the ward, or
• The foster parent is responsible to provide physical care
to and supervision of the ward, whose placement is
supervised by a developmental disability agency.
If none of the above criteria are met, DHHS policy also
allows for an exception if the local office believes that
placement in the home would be appropriate and in the
best interest of the child. If the foster parent has identified
as gay or lesbian, the Service Area Administrator would
then make a request for approval to the Director of the
Division of Children and Family Services. The Director
would then make a decision on whether placement in the
home would be appropriate and in the best interest of
the child. If the placement is approved, the ward will be
placed with the licensed or approved individual.
(Emphasis supplied.) The defendants did not address whether
it would recognize same-sex couples as married if they were
married in another state.
In a response to an interrogatory asking how DHHS would
determine an applicant’s sexual orientation, the defendants
relied on Memo 1-95 to point out its policy not “‘to ask any
specific questions about an individual’s sexual orientation or
marital status than is currently asked in the licensing applica-
tion, home study, etc.’” The defendants stated that training
instructors do not distribute any administrative memorandums
during orientation training, but are “expected to review poli-
cies on their own.”
(g) Memo 1-95 Removed
From Website
The defendants submitted the affidavit of Green, the act-
ing director of the Division of Children and Family Services.
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Green obtained that position on January 8, 2015. Green averred
that Memo 1-95 was removed from the DHHS website on
February 20, 2015, approximately 4 weeks after the defendants
filed their motion for summary judgment and 3 weeks after
the plaintiffs filed their cross-motion for summary judgment.
Green did not state that Memo 1-95 had been rescinded. Nor
did Green address whether homosexual applicants were still
subject to a five-tier approval process for placement.
4. A rguments M ade Below
At the hearing on the motions for summary judgment, the
plaintiffs argued that DHHS discriminated on the basis of sex-
ual orientation. The plaintiffs argued that it did so both by virtue
of Memo 1-95 and through DHHS’ five-tier Pristow Procedure.
The defendants did not object to the Pristow Procedure as
being outside the scope of the pleadings.
The plaintiffs pointed out that Memo 1-95 has not been
rescinded and is used in new employee training; some DHHS
employees and private contracting agencies continue to imple-
ment it. The plaintiffs pointed out that Memo 1-95 was removed
from the website only 2 months before the summary judgment
hearing and that it was still not listed on the web page for
rescinded policies. The plaintiffs pointed out that the defend­
ants have not given an official announcement that they treat
heterosexual and homosexual applicants the same.
The plaintiffs asserted that the confusion about whether
Memo 1-95 still applies discourages homosexual applicants.
Further, such applicants were “subject to the whims of new
employees coming in and out, even at the top level, as to
whether they’re going to apply a policy that’s on the books, or
whether they’re going to apply their predecessor’s policy, or
how they’re going to treat gay and lesbian applicants.”
The plaintiffs argued that the Pristow Procedure is itself
discriminatory, because heterosexual applicants, even felons,
are subjected to fewer tiers of review than homosexual appli-
cants. Since the extra review is only of approvals and not
rejections, the extra review cannot be to protect homosexual
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applicants from discrimination. The plaintiffs pointed out that
the only possible change in the outcome for the applicant as a
result of such review is that a homosexual applicant who was
accepted in an earlier level of review is rejected “further up
the chain.”
In response to these arguments, the defendants acknowl-
edged that Memo 1-95 had not been rescinded, but claimed
that rescission was unnecessary. The defendants described
Memo 1-95 as “nothing”; it was not DHHS’ policy or pro-
cedure, was no longer on the DHHS website, and is not
elsewhere “on the books.” The defendants asserted that the
plaintiffs’ claims of confusion surrounding Memo 1-95 were
speculative and, in any event, “confusion does not equal a con-
stitutional violation.”
With regard to the Pristow Procedure, the defendants did not
deny that the procedure is still in place. But they argued that
“equal protection does not require absolute equality” and that
there was no discrimination, because the same best interests
standard applied to both homosexual and heterosexual appli-
cants. Further, the defendants argued that the extra levels of
review were not directed at the homosexual applicants, but,
rather, were a “mechanism for review of the employees and
what they are doing within their placement determinations” in
order “to prevent bias by the caseworkers.”
Lastly, the defendants argued that nothing has prevented the
plaintiffs from applying to be foster parents and that there was
no remedy for the court to award.
5. District Court’s Order
The court granted summary judgment in favor of the plain-
tiffs. The court’s original order, dated August 5, 2015, was
modified on September 16, following the court’s consideration
of the defendants’ motion to alter or amend the judgment, filed
August 17. Both the August 5 and the September 16 orders
described the plaintiffs as making both a constitutional chal-
lenge to Memo 1-95 and to the discriminatory process of the
Pristow Procedure.
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The court rejected the defendants’ arguments that there
is no longer a case and controversy concerning Memo 1-95
because it has not represented DHHS policy or practice since
2012. The court noted that at the time the lawsuit was filed,
there was confusion within DHHS surrounding Memo 1-95
insofar as most of the employees deposed believed it to still
be DHHS “policy.” And the court stated that although the
Pristow Procedure may be the “current policy,” Memo 1-95 has
not been formally rescinded or replaced. The court concluded
that “DHHS cannot have two conflicting policies that reflect
wholly incompatible interpretations of the same regulations.”
It found that Memo 1-95 should be stricken in its entirety as in
violation of equal protection and due process.
The court likewise found that the Pristow Procedure violated
equal protection and due process. It noted that the defendants
had failed to identify any legitimate government interest to
justify treating homosexual individuals and couples differ-
ently from heterosexual individuals and couples. Further, the
defendants had conceded that no child welfare interests are
advanced by treating homosexual applicants differently from
heterosexual applicants. It rejected the defendants’ argument
that the five-tier approval process was to prevent bias against
homosexual individuals and couples, explaining that “[i]f the
Defendants wanted to prevent bias against gay and lesbian
couples, Defendants would review denials of placements rather
than approvals of placements.”
The court ordered the defendants to “refrain from adopt-
ing or applying policies, procedures, or review processes that
treat gay and lesbian individuals and couples differently from
similarly situated heterosexual individuals and couples when
evaluating foster care or adoption applicants under the ‘best
interests of the child’ standard set forth in DHHS’ regulations.”
Both orders taxed costs of the action to the defendants.
On August 7, 2015, the court granted the plaintiffs an exten-
sion of the time to file a motion for attorney fees and costs,
which was ultimately filed on October 16. The motion for
attorney fees and costs was filed pursuant to 42 U.S.C. § 1988
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(2012). The plaintiffs’ attorney filed with the district court
80 pages of affidavits and attached exhibits in support of the
motion. Those documents are found in the transcript rather
than in the bill of exceptions, because they were not offered
as exhibits during a hearing. But a hearing was conducted in
which the parties discussed the requested fees and costs. The
defendants did not object to the documents supporting the
requested fees on the grounds that they were not properly in
evidence or otherwise unreliable. The court entered an order on
December 15 awarding $28,849.25 in costs and $145,111.30 in
attorney fees.
III. ASSIGNMENTS OF ERROR
The defendants assign that the district court erred by (1)
receiving hearsay evidence, (2) granting summary judgment
when there were genuine issues of fact, (3) granting summary
judgment and issuing an injunction when the plaintiffs did
not have standing, (4) deciding a case that was moot, and (5)
awarding attorney fees.
IV. STANDARD OF REVIEW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted, and gives that party
the benefit of all reasonable inferences deducible from the
evidence.4
[2] When attorney fees are authorized, the trial court exer-
cises its discretion in setting the amount of the fee, which
ruling an appellate court will not disturb on appeal unless the
court abused its discretion.5
V. ANALYSIS
The defendants do not contest the underlying merits of the
district court’s determination that Memo 1-95 and the Pristow
4
Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014).
5
State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016).
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Procedure violate equal protection and due process. Instead,
the defendants assert there is a material issue of fact whether
the plaintiffs’ claims were justiciable. The defendants assert
that if the action was not justiciable, the plaintiffs could not be
the prevailing parties under 42 U.S.C. § 1988. The defendants
also claim the award of attorney fees was an abuse of discre-
tion because the evidence of fees was not presented to the dis-
trict court in the correct manner.
1. Justiciability
[3] We first address whether there was a material issue of
fact as to the justiciability of the plaintiffs’ claims. Summary
judgment is proper if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to
any material facts or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law.6 In the summary judgment con-
text, a fact is material only if it would affect the outcome of
the case.7
[4,5] A justiciable issue requires a present, substantial con-
troversy between parties having adverse legal interests suscep-
tible to immediate resolution and capable of present judicial
enforcement.8 A court decides real controversies and deter-
mines rights actually controverted, and does not address or
dispose of abstract questions or issues that might arise in a
hypothetical or fictitious situation or setting.9
(a) Ripeness
The defendants’ principle contention is that the plaintiffs
lack standing because they have not yet applied for and been
denied foster care licenses and placement of state wards in
their care. The defendants argue that the plaintiffs thus have
6
Latzel v. Bartek, supra note 4.
7
Id.
8
In re Estate of Reading, 261 Neb. 897, 626 N.W.2d 595 (2001).
9
US Ecology v. State, 258 Neb. 10, 601 N.W.2d 775 (1999).
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not been harmed. And they argue that if the plaintiffs are
granted licenses and children are placed in their homes, then
they never will be harmed. The defendants assert that the
controversy presented by the plaintiffs’ action is, accordingly,
purely hypothetical.
[6,7] Standing is a key function in determining whether
a justiciable controversy exists.10 Standing requires that a
litigant have such a personal stake in the outcome of a con-
troversy as to warrant invocation of a court’s jurisdiction and
justify the exercise of the court’s remedial powers on the liti-
gant’s behalf.11
But the defendants do not argue that the plaintiffs are assert-
ing merely a general injury to the public. They do not argue
that if the plaintiffs were to apply for licenses and be denied
the ability to provide foster care, they would lack a personal
stake in the outcome of the litigation. The defendants’ standing
argument is more accurately considered one of ripeness.
[8] The ripeness doctrine is rooted in the same general poli-
cies of justiciability as standing and mootness.12 As compared
to standing, ripeness assumes that an asserted injury is suf-
ficient to support standing, but asks whether the injury is too
contingent or remote to support present adjudication.13 It is a
time dimension of standing.14
[9] We use a two-part inquiry to determine ripeness: (1) the
jurisdictional question of the fitness of the issues for judicial
decision and (2) the prudential question concerning the hard-
ship to the parties of withholding court consideration.15 We
follow the Eighth Circuit, which has explained that
10
Hall v. Progress Pig, Inc., 254 Neb. 150, 575 N.W.2d 369 (1998).
11
City of Omaha v. City of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 (2008).
12
13B Charles Alan Wright et al., Federal Practice and Procedure § 3532.1
(2008).
13
Id.
14
See id.
15
See City of Omaha v. City of Elkhorn, supra note 11.
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“[t]he ‘fitness for judicial decision’ inquiry goes to a
court’s ability to visit an issue. . . . [I]t safeguards against
judicial review of hypothetical or speculative disagree-
ments. . . .
“In addition to being fit for judicial resolution, an issue
must be such that delayed review will result in significant
harm. ‘Harm’ includes both the traditional concept of
actual damages—pecuniary or otherwise—and also the
heightened uncertainty and resulting behavior modifica-
tion that may result from delayed resolution.”16
Declaratory and injunctive relief, which were sought here,
require a justiciable controversy that is ripe for judicial deter-
mination.17 Such actions cannot be used to obtain advisory
opinions, adjudicating hypothetical or speculative situations
that may never come to pass.18
[10] The question of ripeness is to be viewed in light of
the relief sought. We have said that a “declaratory judg-
ment is by definition forward-looking, for it provides ‘“pre-
emptive justice” designed to relieve a party of uncertainty
before the wrong has actually been committed or the damage
suffered.’”19 We have explained that the function of a declara-
tory judgment is to determine justiciable controversies which
either are not yet ripe for adjudication by conventional forms
of remedy or, for other reasons, are not conveniently ame-
nable to the usual remedies.20 The purpose of an injunction,
16
Id. at 80, 752 N.W.2d at 145-46, quoting Nebraska Public Power Dist. v.
MidAmerican Energy, 234 F.3d 1032 (2000).
17
See, Ryder Truck Rental v. Rollins, 246 Neb. 250, 518 N.W.2d 124 (1994);
43A C.J.S. Injunctions § 76 (2014).
18
See, Greater Omaha Realty Co. v. City of Omaha, 258 Neb. 714, 605
N.W.2d 472 (2000); Ryder Truck Rental v. Rollins, supra note 17. See,
also, Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8,
654 N.W.2d 166 (2002).
19
See, Hauserman v. Stadler, 251 Neb. 106, 110, 554 N.W.2d 798, 801
(1996); Ryder Truck Rental v. Rollins, supra note 17.
20
See id. See, also, e.g., Central City Ed. Assn. v. Merrick Cty. Sch. Dist.,
280 Neb. 27, 783 N.W.2d 600 (2010).
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similarly, is to restrain actions that have not yet been taken.21
Injunctive relief is generally preventative, prohibitory, or
protective.22
We reject the defendants’ contention that the harm at issue
in this action is too remote or speculative to be ripe for the
protective, forward-looking relief sought and obtained by the
plaintiffs. Fundamentally, the defendants mischaracterize the
harm the plaintiffs seek to prevent.
The harm the plaintiffs wish to avoid is not just the possible,
ultimate inability to foster state wards; it is the discriminatory
stigma and unequal treatment that homosexual foster applicants
and licensees must suffer if they wish to participate in the fos-
ter care system. The imminent injury that the court redressed
was the plaintiffs’ inability to be treated on equal footing with
heterosexual applicants.23
[11] We find several U.S. Supreme Court cases instruc-
tive on this issue. The U.S. Supreme Court has specifically
rejected the argument that persons claiming denial of equal
treatment must demonstrate their ultimate inability to obtain
a benefit in order for their claims to be justiciable.24 As noted
by the district court below, the Court has explained that the
injury in an equal protection case is the imposition of a bar-
rier that makes it more difficult for members of one group to
obtain a benefit, rather than the ultimate inability to obtain the
benefit.25 This proposition directly contradicts the defendants’
argument that the plaintiffs would suffer no harm unless they
applied to be foster parents and were ultimately denied place-
ment of state wards in their homes.
21
Putnam v. Fortenberry, 256 Neb. 266, 589 N.W.2d 838 (1999).
22
Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, supra note 18.
23
See Revelis v. Napolitano, 844 F. Supp. 2d 915 (N.D. Ill. 2012).
24
Northeastern Fla. Chapter, Associated Gen. Contractors of America v.
City of Jacksonville, 508 U.S. 656, 113 S. Ct. 2297, 124 L. Ed. 2d 586
(1993).
25
See id.
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[12] The U.S. Supreme Court has applied this proposition in
the context of affirmative action bidding programs and school
application processes, holding that a plaintiff has standing
to make a claim challenging the inability to compete on an
equal footing no matter whether the plaintiff would have been
admitted to the school or obtained the winning bid but for that
unequal treatment.26 The Court has held that when the govern-
ment erects a barrier that makes it more difficult for members
of one group to obtain a benefit than it is for members of
another group, a member of the former group seeking to chal-
lenge the barrier need only demonstrate that he or she is ready
and able to perform and that a discriminatory policy prevents
him or her from doing so on an equal basis.27
In other cases, the Court has elaborated on the stigmatic
injury that stems from discriminatory treatment. The Court
has explained that the discriminatory treatment itself is a seri-
ous harm that supports standing. In Heckler v. Mathews,28 for
example, the Court addressed the plaintiff’s claim that Social
Security laws subjected him to unequal benefits on the basis of
gender. The Court found standing, despite the fact that a suc-
cessful action would result in the plaintiff’s benefits remaining
the same (while, due to the severability of the discriminatory
provision, female applicants’ benefits would decrease).29
[13] The Court stated it had “repeatedly emphasized” that
discrimination itself, by perpetuating “archaic and ster­
eotypic notions” or by stigmatizing members of the
26
See, Northeastern Fla. Chapter, Associated Gen. Contractors of America
v. City of Jacksonville, supra note 24; University of California Regents v.
Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978).
27
See Northeastern Fla. Chapter, Associated Gen. Contractors of America v.
City of Jacksonville, supra note 24.
28
Heckler v. Mathews, 465 U.S. 728, 104 S. Ct. 1387, 79 L. Ed. 2d 646
(1984). See, also, Barber v. Bryant, 193 F. Supp. 3d 677 (S.D. Miss. 2016);
Campaign for Southern Equality v. Bryant, 64 F. Supp. 3d 906 (S.D. Miss.
2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014).
29
Heckler v. Mathews, supra note 28.
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disfavored group as “innately inferior” and therefore as
less worthy participants in the political community, . . .
can cause serious noneconomic injuries to those persons
who are personally denied equal treatment solely because
of their membership in a disfavored group.30
The Court reiterated that when the right invoked is that of
equal treatment, the appropriate remedy is a mandate of equal
treatment.31 Similarly, in Allen v. Wright,32 the U.S. Supreme
Court explained that for those persons who are personally sub-
ject to discriminatory treatment, stigmatizing injury caused by
discrimination is a serious noneconomic injury that is sufficient
to support standing.
As for the ripeness questions of whether this harm is too
remote and whether delayed review will result in significant
harm, the Court held in the bidding cases that the plaintiffs
seeking to prevent future deprivation of the equal opportunity
to compete need only demonstrate they will “sometime in the
relatively near future” bid on a contract governed by such race-
based financial incentives.33
[14] In a number of cases in other jurisdictions similar to
the case at bar, courts have found plaintiffs to have standing
in spite of the absence of any formal application under the
challenged program or law.34 This is because standing does not
30
Id., 465 U.S. at 739-40 (citation omitted).
31
Heckler v. Mathews, supra note 28.
32
Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984),
abrogated on other grounds, Lexmark Intern. v. Static Control, ___ U.S.
___, 134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014).
33
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S. Ct. 2097,
132 L. Ed. 2d 158 (1995).
34
Dragovich v. U.S. Department of the Treasury, 764 F. Supp. 2d 1178 (N.D.
Cal. 2011). See, also, Reno v. Catholic Social Services, Inc., 509 U.S. 43,
113 S. Ct. 2485, 125 L. Ed. 2d 38 (1993); Teamsters v. United States, 431
U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); LeClerc v. Webb, 419
F.3d 405 (5th Cir. 2005); Terry v. Cook, 866 F.2d 373 (11th Cir. 1989);
Waters v. Ricketts, 48 F. Supp. 3d 1271 (D. Neb. 2015).
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require exercises in futility.35 “Courts have long recognized
circumstances in which a failure to apply may be overcome by
facts which demonstrate the futility of such application.”36
In Teamsters v. United States,37 the U.S. Supreme Court
explained that “[i]f an employer should announce his policy of
discrimination by a sign reading ‘Whites Only’ on the hiring-
office door, his victims would not be limited to the few who
ignored the sign and subjected themselves to personal rebuffs.”
Thus, the Court rejected the argument that those who failed
to apply for the position that discriminatory practices made it
difficult to obtain could not share in the “make-whole relief”
that was sought in the action.38 Rather, such plaintiffs must
show that they should be treated as applicants, or “potential
victim[s],” of the discrimination, by showing they were actu-
ally deterred by the discriminatory practice and would have
applied but for that practice.39
The Court explained that a plaintiff’s desire for a job need
not be “translated into a formal application solely because of
his unwillingness to engage in a futile gesture.”40 The nonap-
plicant is unwilling to subject himself or herself to the humili-
ation of certain rejection.41 Such a nonapplicant is as much a
victim of discrimination as the applicant.42
Memo 1-95 was a published statement on DHHS’ official
website that “heterosexuals only” need apply to be foster
35
Dragovich v. U.S. Department of the Treasury, supra note 34. See, also,
e.g., LeClerc v. Webb, supra note 34; Terry v. Cook, supra note 34.
36
Terry v. Cook, supra note 34, 866 F.2d at 378.
37
Teamsters v. United States, supra note 34, 431 U.S. at 365. See, also, e.g.,
Reno v. Catholic Social Services, Inc., supra note 34.
38
Teamsters v. United States, supra note 34, 431 U.S. at 367.
39
Id.
40
Id., 431 U.S. at 366.
41
See Teamsters v. United States, supra note 34.
42
See id.
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parents. It is legally indistinguishable from a sign reading
“Whites Only” on the hiring-office door. Memo 1-95 clearly
excluded same-sex couples and individuals who identified
as homosexuals either from being licensed or from having
state wards placed in their homes. There is no dispute that
all the plaintiffs were ready and able to be foster parents,
were aware of and deterred by Memo 1-95, and would have
taken further steps to become foster parents but for the bar-
rier expressed in Memo 1-95. The plaintiffs considered any
further action to be futile and did not wish to subject them-
selves to the humiliation of rejection and the stigmatic harm
of unequal treatment.
There was a barrier to equal treatment and serious non-
economic injuries that the plaintiffs would be imminently
subjected to upon application to become foster parents. The
plaintiffs could only ultimately foster children through an
uncertain exception to the absolute ban set forth in Memo
1-95 or through a five-tier review procedure that subjected
them to increased scrutiny because of their sexual orienta-
tion. In either scenario, the plaintiffs would suffer stigmatic
harm stemming from systematic unequal treatment. By seek-
ing forward-looking relief, the plaintiffs wished to avoid
suffering the discrimination inherent in Memo 1-95 and the
Pristow Procedure.
What is more, there is no dispute in the record that Todd
and Joel actually began the process of applying by completing
training, a home study, and background checks. After a sig-
nificant delay in the progression of their case, they contacted
the director as well as the chief executive officer of DHHS,
who both either directly or indirectly confirmed the continu-
ing force and effect of Memo 1-95. In addressing the by-then
3-year delay, Winterer relied repeatedly on Memo 1-95 and
stated it was “still in force.” In an action where multiple plain-
tiffs seek identical injunctive or declaratory relief, once the
court determines that one of the plaintiffs has standing, it need
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not decide the standing of the others in order to determine that
the action is justiciable.43 For if one plaintiff prevails on the
merits, the same prospective relief will issue regardless of the
standing of the other plaintiffs.44 Clearly, Todd and Joel did
not need to subject themselves to even more personal rebuffs
in order to demonstrate their personal stake in this action and
the ripeness of their claim.
We agree with the district court that the controversy raised
by the plaintiffs is neither hypothetical nor speculative by vir-
tue of the fact that the plaintiffs have not yet applied for and
been denied foster care licenses and placement of state wards in
their homes. And we agree with the district court that the harm
at issue is appropriate for the preemptive justice that declara-
tory and injunctive relief provide. The plaintiffs were faced
with the unavoidable inability to be treated on equal footing
if they wished to pursue being foster parents, and the district
court’s order effected an immediate resolution of that imminent
and serious harm. We find no merit to the defendants’ narrow
view that the action presented a hypothetical harm because
the plaintiffs have not shown an ultimate inability to become
foster parents.
43
Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S.
47, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006); Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012); New Jersey Physicians, Inc. v. President
of U.S., 653 F.3d 234 (3d Cir. 2011); Parker v. Scrap Metal Processors,
Inc., 386 F.3d 993 (11th Cir. 2004); Save Our Heritage, Inc. v. F.A.A.,
269 F.3d 49 (1st Cir. 2001); Mountain States Legal Foundation v.
Glickman, 92 F.3d 1228 (D.C. Cir. 1996); Kelley v. Selin, 42 F.3d 1501
(6th Cir. 1995); Heckman v. Williamson County, 369 S.W.3d 137 (Tex.
2012); MacPherson v. DAS, 340 Or. 117, 130 P.3d 308 (2006); Cohen
v. Zoning Bd. of Appeals, 35 Mass. App. 619, 624 N.E.2d 119 (1993).
See, also, e.g., Joan Steinman, The Effects of Case Consolidation on the
Procedural Rights of Litigants: What They Are, What They Might Be Part
1: Justiciability and Jurisdiction (Original and Appellate), 42 U.C.L.A.
L. Rev. 717 (1995).
44
Patel v. Dept. of Licensing and Regulation, 469 S.W.3d 69 (Tex. 2015).
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(b) Mootness
[15] The defendants alternatively claim the plaintiffs
lacked a justiciable claim, because Memo 1-95 no longer
represented official DHHS policy or practice by the time
the plaintiffs filed this action. In order to maintain an action
to enforce private rights, the plaintiff must show that he or
she will be benefited by the relief to be granted.45 An action
becomes moot when the issues initially presented in the
proceedings no longer exist or the parties lack a legally cog-
nizable interest in the outcome of the action.46 At the latest,
the defendants believe that any issue concerning Memo 1-95
became moot in February 2015, when Memo 1-95 was taken
off the DHHS website during the pendency of the parties’
motions for summary judgment.
This list of memorandums was designed to be viewed
by the public, and new DHHS employees were directed to
familiarize themselves with DHHS policy by looking at the
memorandums on the website. As late as November 2011,
DHHS officials with the authority to declare DHHS policy and
procedure represented to same-sex couples that Memo 1-95
was still in force. The continuing presence of Memo 1-95 on
the DHHS website at the time this action was filed affirmed
these representations.
Pristow intentionally avoided formal rescission of Memo
1-95 and, in fact, avoided creating anything in writing dis-
avowing it or stating a policy or practice different from that
articulated in Memo 1-95. The Pristow Procedure was strictly
verbal, and DHHS employees were told about the Pristow
Procedure only if and when they were confronted with homo-
sexual applicants. Pristow deliberately kept Memo 1-95 on
the DHHS website, and the Pristow Procedure was never
45
Id.
46
See Mullendore v. Nuernberger, 230 Neb. 921, 434 N.W.2d 511 (1989).
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communicated to the public. In fact, it can be surmised that
the plaintiffs did not learn of the Pristow Procedure until dis-
covery conducted during the current lawsuit.
[16] If a discriminatory policy is openly declared, then it
is unnecessary for a plaintiff to demonstrate it is followed
in order to obtain injunctive or declaratory relief.47 We thus
find immaterial any dispute in the record as to whether the
Pristow Procedure was a policy versus a practice, whether
it “replaced” Memo 1-95, or the level of confusion within
DHHS and its contractors concerning DHHS’ policy and prac-
tice when this action was filed. A secret change in policy or
procedure cannot moot an action based on a published policy
statement that has been cited by the agency as excluding the
plaintiffs from eligibility.
Memo 1-95 was deliberately maintained on the website
in order to give the public the impression that it represented
official DHHS policy. The defendants cannot now complain
that the plaintiffs believed it so, were deterred by the discrimi-
natory exclusion set forth so clearly therein, and brought this
action to challenge it.
[17,18] As for DHHS’ eleventh-hour removal of Memo
1-95 from its website, it is well recognized that “a defendant
cannot automatically moot a case simply by ending its unlaw-
ful conduct once sued.”48 If voluntary cessation of that kind
rendered a case moot, “a defendant could engage in unlawful
conduct, stop when sued to have the case declared moot, then
pick up where he left off, repeating this cycle until he achieves
all his unlawful ends.”49 “‘[A] defendant claiming that its vol-
untary compliance moots a case bears the formidable burden
of showing that it is absolutely clear the allegedly wrongful
47
See U.S. v. Bd. of Educ. of School D. of Philadelphia, 911 F.2d 882 (3d
Cir. 1990).
48
Already, LLC v. Nike, Inc., ___ U.S. ___, 133 S. Ct. 721, 727, 184 L. Ed.
2d 553 (2013).
49
Id.
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behavior could not reasonably be expected to recur.’”50 This
standard is “stringent.”51 The defendants made no attempt to
meet this standard.
Finally, we note that any argument that the plaintiffs’ action
is moot because the Pristow Procedure superseded Memo 1-95
ignores the fact that the Pristow Procedure itself was chal-
lenged in this action and was encompassed by the injunctive
and declaratory relief granted by the district court’s order.
The defendants make no argument that the five-tier Pristow
Procedure is no longer in effect or that the plaintiffs’ action
with regard to the Pristow Procedure is otherwise nonjus-
ticiable. In their brief, the defendants make no arguments
concerning the Pristow Procedure other than to assert that it
superseded Memo 1-95.
[19] The defendants mentioned at oral arguments that the
Pristow Procedure was not specifically alleged in the plaintiffs’
complaint. Thus, they believed that if they could show that the
Pristow Procedure replaced Memo 1-95, there was no action.
But this court’s consideration of a cause on appeal is limited
to errors assigned and discussed.52 The defendants assigned
neither error below nor on appeal asserting that the Pristow
Procedure was beyond the scope of the pleadings or that they
lacked timely notice of the Pristow Procedure’s being at issue
in the case. To the contrary, the plaintiffs argued to the district
court that the Pristow Procedure was unconstitutionally dis-
criminatory, and the defendants argued that it was not.
The plaintiffs, having no apparent way of knowing about
the Pristow Procedure before filing their action, alleged as
the operative fact in their complaint the discriminatory exclu-
sion articulated in Memo 1-95. The defendants raised the
50
Id. (quoting Friends of Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)).
51
Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
supra note 50, 528 U.S. at 189.
52
See, Neb. Rev. Stat. § 25-1919 (Reissue 2016); In re Estate of Balvin, 295
Neb. 346, 888 N.W.2d 499 (2016).
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Pristow Procedure in the hearing on the motions for summary
judgment in the hope of mooting the plaintiffs’ claim. The
defendants also hoped that a discriminatory process allowing
for the possibility of fostering a child was somehow consti-
tutional even if the absolute prohibition of Memo 1-95 was
not. Finally, the defendants argued that the ultimate possibil-
ity of fostering inherent to the Pristow Procedure meant that
the plaintiffs could demonstrate no imminent harm—an argu-
ment that, if accepted, could have left unequal scrutiny of the
Pristow Procedure immune from challenge.
At the same time that the defendants relied so heavily on
the Pristow Procedure for their defense, they remained silent
as to the clearly expanded scope of the operative facts at issue
in the plaintiffs’ action. While, in general, we caution plaintiffs
to amend their pleadings when discovery reveals new operative
facts, the defendants’ maneuverings here are unavailing.
We will not reverse the district court’s judgment on the
ground that the Pristow Procedure superseded Memo 1-95.
Memo 1-95 was openly declared, and DHHS chose not to
inform the public that it was no longer followed. Neither did
DHHS moot the plaintiffs’ case through its voluntary removal
of Memo 1-95 from the website following the motions for
summary judgment. And, regardless of the status of Memo
1-95, the plaintiffs were the prevailing parties with regard to
the discriminatory nature of the Pristow Procedure.
2. Attorney Fees
Beyond the defendants’ arguments attacking the justiciabil-
ity of the plaintiffs’ underlying claims, with the ultimate goal
of preventing the plaintiffs from being the prevailing parties
for purposes of attorney fees, the defendants assert that there
was insufficient evidence of attorney fees. The defendants
make this argument solely on the ground that the evidence of
attorney fees was filed with the clerk of the district court and
is found only in the transcript. Evidence of attorney fees was
not entered into evidence as exhibits and that evidence is not,
therefore, found in the bill of exceptions.
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The attorney fees in this case were awarded pursuant to
42 U.S.C. § 1988. Section 1988(b) states in relevant part
that “[i]n any action or proceeding to enforce a provision
of [§] 1983, . . . the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs . . . .” We have said that
affidavits included in the transcript, but not received as
evidence and appearing in the bill of exceptions, cannot be
considered on appeal by the appellate court.53 Such affidavits
must be “preserved” for appellate review in the bill of excep-
tions.54 We have explained that offering of a bill of exceptions
is necessary at some point if the appellate court is to consider
errors assigned by the appellant which require a review of the
evidence that was received by the tribunal from which the
appeal is taken.55
But the defendants are the appellants in this case; they wish
us to consider their assignment of error that the lower court
abused its discretion in awarding attorney fees. Generally, in
determining whether there is merit to an appellant’s claim
that the lower court’s judgment should be reversed, it will be
presumed in the absence of a bill of exceptions that issues
of fact presented by the pleadings were established by the
evidence.56
True, where an appellant argues on appeal that the evidence
is insufficient on a point for which an appellee bore the bur-
den of proof, we will not simply presume there was evidence
before the lower court, which we have no evidence of despite
the filing of a bill of exceptions.57 But we have never held
53
See, State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006); State v. Allen,
159 Neb. 314, 66 N.W.2d 830 (1954).
54
State v. Allen, supra note 53, 159 Neb. at 321, 66 N.W.2d at 835.
55
See Marcotte v. City of Omaha, 196 Neb. 217, 241 N.W.2d 838 (1976).
56
See, State v. Allen, supra note 53; McMillan v. Diamond, 77 Neb. 671, 110
N.W. 542 (1906).
57
See, e.g., Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005).
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that an appellant may successfully assert that the evidence was
insufficient to support a lower court’s order when the record
on appeal affirmatively demonstrates that sufficient evidence
was considered by the lower court, with notice to and without
objection by the appellant, but that such evidence was received
through filing with the clerk of the court rather than at a hear-
ing wherein it became part of the bill of exceptions.
To the contrary, in Zwink v. Ahlman,58 we expressly rejected
the appellants’ contention that the lower court’s judgment was
not sustained by the evidence because the necessary evidence
was attached to the petition and placed in the transcript, but
was not entered as an exhibit to be found in the bill of excep-
tions. We observed that the journal of the trial court showed
that the evidence in question was considered and that no
specific objection was raised on the ground that the evidence
was not formally admitted.59 We concluded that under such
circumstances, the evidence was to be considered as if made a
part of the bill of exceptions.60
We explained that it would be repugnant to the general
rules of equity governing the underlying action to dismiss
the proceeding because the evidence was “not formally intro-
duced in evidence when the transcript shows they were duly
filed and the judgment of the trial court shows [the evidence
was] considered by it.”61 Furthermore, to remand the cause
for retrial because the evidence was not formally introduced
when the evidence was before us in the transcript and was
considered by the trial court, “would appear a circuitous and
useless procedure if a proper decision is possible by consid-
ering them as evidence along with the bill of exceptions at
this time.”62
58
Zwink v. Ahlman, 177 Neb. 15, 128 N.W.2d 121 (1964).
59
See id.
60
Id.
61
Id. at 19-20, 128 N.W.2d at 124.
62
Id. at 20, 128 N.W.2d at 124-25.
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Similarly, in Nimmer v. Nimmer,63 we affirmed an award of
attorney fees despite the fact that the evidence of those fees was
found only as an itemized list of services rendered, attached to
the application for fees, and not in the bill of exceptions. We
observed that it was clear that there was a hearing on the fees,
but no bill of exceptions was created for that hearing.
And in Chilen v. Commercial Casualty Ins. Co.,64 we
affirmed the award of attorney fees despite the fact that the
evidence of such fees, though apparently presented at the hear-
ing, was not embodied in the bill of exceptions. The appellant
was the party opposing the fees, and we found that with no
bill of exceptions, the pleadings were sufficient to support the
judgment awarding the fees.65
The defendants’ only argument that there was insufficient
evidence to support the lower court’s award of fees is that the
evidence of those fees is found in the transcript rather than in
the bill of exceptions. However, the appellate record is clear
that extensive evidence supporting attorney fees was filed with
the clerk of the district court, examined by the district court,
and addressed by both parties during the hearing on fees and
costs. The defendants did not raise at this hearing any issue
regarding the method by which the evidence was brought
before the court. They did not raise any objection to the fees
other than to assert that they were excessive. The district court
clearly found the exhibits adequate and reduced the amount
of its award in light of the defendants’ arguments, made upon
examination of the evidence found in the transcript.
These facts are clearly distinguishable from Lomack v. Kohl-
Watts,66 a case relied upon by the defendants. In Lomack, it was
the appellant who assigned as error the denial of fees below.
63
Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979).
64
Chilen v. Commercial Casualty Ins. Co., 135 Neb. 619, 283 N.W. 366
(1939).
65
Id.
66
Lomack v. Kohl-Watts, 13 Neb. Ct. App. 14, 688 N.W.2d 365 (2004).
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And there was no indication in the appellate record that the
evidence of attorney fees, found only in the transcript, was
actually filed with the clerk of the lower court. Neither was
there any evidence that the opposing party had notice of the
evidence and an opportunity to object to it, or that such evi-
dence was considered by the lower court in making its deter-
mination regarding fees.
[20] On appeal, a trial court’s decision awarding or denying
attorney fees will be upheld absent an abuse of discretion.67
Upon the record before us, we cannot conclude that the district
court abused its discretion in awarding costs and attorney fees
to the plaintiffs.
3. Hearsay
We do not need to address the defendants’ assignment of
error relating to the admission in evidence of several news­
paper articles. The defendants assert these articles were inad-
missible hearsay. These articles played no role in our determi-
nation that the underlying action was justiciable.
VI. CONCLUSION
We find no merit to the defendants’ claims that the underly-
ing action was not justiciable. Nor do we find any merit to the
defendants’ claims that the district court abused its discretion
in awarding costs and attorney fees, simply because the evi-
dence of those fees is found in the appellate transcript rather
than in the bill of exceptions. We find no merit to the defend­
ants’ assignments of error; therefore, we affirm the judgment
of the district court.
A ffirmed.
67
Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016).