State ex rel. Peterson v. Ebke

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www.nebraska.gov/apps-courts-epub/
09/27/2019 01:10 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE EX REL. PETERSON v. EBKE
Cite as 303 Neb. 637
State of Nebraska ex rel. Douglas J. Peterson,
Attorney General, and Scott Frakes, director
of the Nebraska Department of Correctional
Services, appellees, v. Senator Laura Ebke,
chairperson of the Judiciary Committee
of the Nebraska Legislature,
et al., appellants.
___ N.W.2d ___
Filed July 12, 2019. No. S-18-795.
1. Moot Question: Jurisdiction: Appeal and Error. Because mootness is
a justiciability doctrine that operates to prevent courts from exercising
jurisdiction, appellate courts review mootness determinations under the
same standard of review as other jurisdictional questions.
2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
that does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent of the lower court’s decision.
3. Jurisdiction. An actual case or controversy is necessary for the exercise
of judicial power.
4. Courts: Judgments. In the absence of an actual case or controversy
requiring judicial resolution, it is not the function of the courts to render
a judgment that is merely advisory.
5. Moot Question. Mootness refers to events occurring after the filing
of a suit which eradicate the requisite personal interest in the dispute’s
resolution that existed at the beginning of the litigation.
6. 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.
7. Moot Question: Words and Phrases. A moot case is one which seeks
to determine a question that no longer rests upon existing facts or
rights—i.e., a case in which the issues presented are no longer alive.
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STATE EX REL. PETERSON v. EBKE
Cite as 303 Neb. 637
8. Moot Question. The central question in a mootness analysis is whether
changes in circumstances that prevailed at the beginning of litigation
have forestalled any occasion for meaningful relief.
9. Legislature: Contracts: Time. The typical understanding of state leg-
islative bodies is that, with the limited exception of valid contractual
obligations with third parties, pending matters die at the expiration of
the legislative body’s 2-year term.
10. Legislature. Any current legislative body represents the people who
elected it and should have power equal to its predecessor.
11. ____. The will of the past electorate should not control the future elec-
torate and its representatives.
12. Legislature: Time. The authority of a legislature is limited to the period
of its own existence.
13. Public Purpose: Statutes. An investigatory committee, being the mere
agency of the body which appointed it, dies when the body itself dies,
unless it is continued by law.
14. Legislature: Time. The general rule is that the period of legislative
existence is its 2-year term, and committee investigations and attendant
subpoenas automatically expire upon the expiration of that term.
15. Legislature. The Nebraska Unicameral Legislature, while unique
because it is not a bicameral system, is not a continuing body.
16. Constitutional Law: Legislature. The Nebraska Constitution is not a
grant, but, rather, is a restriction on the legislative power in light of the
otherwise plenary power of the people of each state to do as they will.
17. Legislature: Time. Because the Nebraska Legislature is not a continu-
ing body, a particular legislature’s biennium period of existence ceases
at the end its biennium term.
18. Legislature: Time: Presumptions. Like other pending matters, com-
mittee investigations and attendant subpoenas are presumed to cease to
exist at the end of the term in which they commenced.
19. Legislature: Statutes: Time. There is no applicable statute or legisla-
tive rule providing for the continuing viability of pending subpoenas
issued by an investigatory committee of a prior biennium term.
20. Moot Question: Appeal and Error. Under certain circumstances, an
appellate court may entertain the issues presented by a moot case when
the claims presented involve a matter of great public interest or when
other rights or liabilities may be affected by the case’s determination.
21. Moot Question: Words and Phrases. In determining whether the
public interest exception should be invoked, the court considers the
public or private nature of the question presented, the desirability of an
authoritative adjudication for future guidance of public officials, and the
likelihood of future recurrence of the same or a similar problem.
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303 Nebraska R eports
STATE EX REL. PETERSON v. EBKE
Cite as 303 Neb. 637
Appeal from the District Court for Lancaster County: Lori
A. M aret, Judge. Appeal and motion to substitute parties
dismissed.
William M. Connolly and Patrick R. Guinan, of Erickson &
Sederstrom, P.C., for appellants.
Douglas J. Peterson, Attorney General, Ryan S. Post, James
D. Smith, and David A. Lopez for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
I. NATURE OF CASE
The underlying action in this case involves resistance to an
investigatory subpoena issued during the 105th Legislature by
the Judiciary Committee of the Nebraska Legislature, with the
approval of the Executive Committee of the 105th Legislature.
The subpoena commanded the attendance of the director of the
Department of Correctional Services to testify at a scheduled
committee hearing. Before the scheduled hearing, the State of
Nebraska, represented by the Attorney General, and the direc-
tor of the Department of Correctional Services (collectively
the Department) sued the senators who were on the Judiciary
Committee and the Executive Board of the Legislative Council
at the time the subpoena was issued, as well as the Clerk of
the Legislature who signed the subpoena (collectively the
Senators). The Department alleged, among other things, that
the Legislature as a whole did not vote to approve the investi-
gation or the issuance of the subpoena; thus, the subpoena was
not in the discharge of any duty imposed by the Legislative
Council, by statute, or by a resolution of the Legislature, as
described by Neb. Rev. Stat. § 50-401 (Reissue 2010). The
Department filed an action to quash the subpoena pursuant to
Neb. Rev. Stat. § 50-406 (Cum. Supp. 2018), and also sought,
as to the Senators, declaratory judgment under the Uniform
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STATE EX REL. PETERSON v. EBKE
Cite as 303 Neb. 637
Declaratory Judgments Act1 and injunctive relief in relation
to various aspects of the procedure leading up to and includ-
ing the subpoena. Before the Senators filed an answer to the
complaint, the court granted the Department’s motion to quash
the subpoena and denied the Senators’ motion to dismiss. The
Senators appeal from the court’s order. The Department asserts
that the appeal is moot because the subpoena was “issued by
a committee of a Legislature which no longer exists.”2 We
agree and hold that there is no longer a case and controversy
as required for the exercise of our judicial power. A deter-
mination of the underlying merits of the dispute would be
purely advisory.
II. BACKGROUND
1. Internal Complaint
Under § 84-907.10
On March 21, 2018, Senator Ernie Chambers filed a com-
plaint under Neb. Rev. Stat. § 84-907.10(1) (Reissue 2014)
with Senator Dan Watermeier, chairperson of the Executive
Board of the Legislative Council of the 105th Legislature.
Chambers’ complaint questioned, among other things, whether
the Nebraska Department of Correctional Services followed
applicable state and federal laws in selecting the substances
for execution by lethal injection and in allegedly withhold-
ing notices and public access to various documents, in vio-
lation of Neb. Rev. Stat. §§ 84-906.01 (Reissue 2014) and
84-907(2) (Cum. Supp. 2018). The complaint also alleged that
the Department of Correctional Services’ protocol violated the
prohibition against cruel and unusual punishment found in the
U.S. and Nebraska Constitutions, because the paralytic agent
of the four-drug protocol served no valid purpose and would
mask any signs of the condemned prisoner’s distress, pain, or
suffering during the execution.
1
Neb. Rev. Stat. § 25-21,149 et seq. (Reissue 2016).
2
Brief for appellees at 8.
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STATE EX REL. PETERSON v. EBKE
Cite as 303 Neb. 637
2. Complaint Forwarded to
Judiciary Committee
Watermeier referred the internal complaint to Senator Laura
Ebke, as chairperson of the Judiciary Committee of the 105th
Legislature, pursuant to § 84-907.10(2), which requires the
chairperson or committee staff member of the Executive Board
to refer the complaint to “the standing committee of the
Legislature which has subject matter jurisdiction over the issue
involved in the rule or regulation or which has traditionally
handled the issue.” Apparently, there was no objection, as pro-
vided for by rule 6, § 2(a), of the Rules of the 105th Nebraska
Unicameral Legislature, Second Session (2018), that the matter
had been referred to the wrong committee.
3. Public Hearing
The Judiciary Committee of the 105th Legislature appar-
ently chose to forgo requesting a written response from the
agency as described in § 84-907.10(3). Instead, on April 9,
2018, the Judiciary Committee elected, by majority vote, to
conduct a public hearing pursuant to § 50-406 and rule 3, § 1,
of the Rules of the 105th Nebraska Unicameral Legislature,
and it sent a letter to the chairperson of the Executive Board
so stating. The investigation sought to address concerns relat-
ing to the Department of Correctional Services’ rules and
regulations outlining the protocol for execution of the death
penalty, codified at title 69, chapter 11, of the Nebraska
Administrative Code. The concerns related to the process
by which the protocol was adopted, its constitutionality, and
whether it is consistent with the Legislature’s intent when it
passed 2009 Neb. Laws, L.B. 36. The hearing was scheduled
for May 8.
Section 50-406 provides in full:
In the discharge of any duty imposed by the Legislative
Council, by statute, or by a resolution of the Legislature,
the council, any committee thereof, and any standing or
special committee created by statute or resolution of the
Legislature may hold public hearings and may administer
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STATE EX REL. PETERSON v. EBKE
Cite as 303 Neb. 637
oaths, issue subpoenas when the committee has received
prior approval by a majority vote of the Executive Board
of the Legislative Council to issue subpoenas in connec-
tion with the specific inquiry or investigation in question,
compel the attendance of witnesses and the production of
any papers, books, accounts, documents, and testimony,
and cause the depositions of witnesses to be taken in the
manner prescribed by law for taking depositions in civil
actions in the district court. The council or the commit-
tee may require any state agency, political subdivision,
or person to provide information relevant to the commit-
tee’s work, and the state agency, political subdivision,
or person shall provide the information requested within
thirty days after the request except as provided for in a
subpoena. The statute or resolution creating a commit-
tee may prescribe limitations on the authority granted by
this section.
Litigation to compel or quash compliance with author-
ity exercised pursuant to this section shall be advanced
on the trial docket and heard and decided by the court as
quickly as possible. Either party may appeal to the Court
of Appeals within ten days after a decision is rendered.
The district court of Lancaster County has jurisdiction
over all litigation arising under this section. In all such
litigation the executive board shall provide for legal rep-
resentation for the council or committee.
Section 50-401 creates the Legislative Council, “which shall
consist of all of the members of the Legislature” and shall
have as its function “to consider legislative policies between
sessions of the Legislature and carry out the duties imposed by
section 50-402.” Neb. Rev. Stat. § 50-402(8) (Reissue 2010),
in turn, provides that it shall be the duty of the Legislative
Council to
set up subcommittees within the executive board to carry
out functions such as investigation of any area which it
may decide is in the public interest with power to employ
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STATE EX REL. PETERSON v. EBKE
Cite as 303 Neb. 637
such additional personnel as may be needed to carry
out the intent and activities of the executive board or
the Legislature.
Rule 3, § 1, of the Rules of the 105th Nebraska Unicameral
Legislature, in part, described committee investigatory hearings:
(a) Each committee of the Legislature is authorized to
hold such hearings, to sit and act at such times and places
during the sessions, recesses, and adjourned periods of
the Legislature, to require by subpoena or otherwise the
attendance of such witnesses and the production of such
correspondence, books, papers, and documents, and to
take such testimony, as it deems advisable. Each com-
mittee may make investigation into any matter within its
jurisdiction, may report such hearings as may be had by
it, and may present to the Legislature for its consideration
any final reports and recommendations for action result-
ing from such investigations.
(b) A committee’s subject-matter jurisdiction extends to
all matters specified in the act creating the committee, or
to all matters reasonably comprehended in the name of the
committee. A committee’s particular jurisdiction extends
to any bill, resolution, or other measure referred to it by
the Legislature, until final report of the measure has been
made by the committee to the Legislature. A committee’s
particular jurisdiction shall also include review of the
budgets of agencies, boards, and commissions reasonably
encompassed in its subject-matter jurisdiction.
(c) No committee may exercise any of the above men-
tioned powers in a manner contrary to the Rules of the
Legislature or in a manner which exceeds the scope of the
act defining the purpose of the committee.
Rule 3, § 21, of the Rules of the 105th Nebraska Unicameral
Legislature described the subpoena powers of committees in
relation to such hearings:
It is within the inherent power of any legislative com-
mittee to gather information pursuant to its regular
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Cite as 303 Neb. 637
functions, and to conduct investigations of matters within
its ­subject-matter jurisdiction.
A committee’s power of subpoena should not be exer-
cised unless the committee has determined that no other
method of securing the desired information would be suc-
cessful or practicable, and that the matter is of primary
importance to the welfare of the State of Nebraska.
A committee of the Legislature conducting an inves-
tigation and gathering information, whether pursuant to
legislative direction or pursuant to its regular functions of
oversight and bill preparation, shall observe the following
procedures in addition to regular committee procedures
whenever subpoenas are issued:
(A) Issuance of Subpoenas.
(i) A committee may, by a majority vote of all of its
members taken at a meeting properly called, issue a sub-
poena requiring a person to appear before the committee
and be examined in reference to any matter within the
scope of the inquiry or investigation being conducted by
the committee, but only when the committee has received
prior approval by a majority vote of the Executive Board
to issue subpoenas in connection with the specific inquiry
or investigation in question.
....
(iii) While the Legislature is in session, a committee
deciding to issue subpoenas must promptly report each
issuance to the Legislature. A record shall be made in the
Journal reflecting the date the subpoena was issued, to
whom it was issued, for what purpose it was issued, and
the date on which testimony or production of documents
is to take place. Under extraordinary circumstances, the
identity of the person subpoenaed may be withheld from
publication if necessary to protect the safety of an indi-
vidual or the confidentiality of the matters to be heard.
(iv) A person subpoenaed to attend a hearing of a com-
mittee shall receive the same fees and allowances as a
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STATE EX REL. PETERSON v. EBKE
Cite as 303 Neb. 637
person subpoenaed to give testimony in an action pending
in a court of record.
(B) Notice to Witnesses.
....
(ii) Any person who is served with a subpoena to
attend a hearing of a committee shall also be served with
a copy of the act defining the purpose of the committee,
a copy of the rules under which the committee functions,
a general statement informing him or her of the subject
matter of the committee’s investigation or inquiry, and a
notice that he or she may be accompanied at the hearing
by counsel of his or her own choosing.
....
(G) Contempt.
....
The chairperson of a committee may apply to the
Legislature or, during the interim, to the district court
of any county to compel obedience by proceedings for
contempt.
(H) Penalties.
(i) A person guilty of contempt under the provision
of these rules shall be subject to punishment pursuant to
RRS 50-105 and 50-106 during the session, or to RRS
50-407 when the Legislature is not in session.
(ii) If a committee fails in any material respect to
comply with the requirements of these rules, any per-
son subject to a subpoena or a subpoena duces tecum
who is injured by such failure shall be relieved of any
requirement to attend the hearing for which the subpoena
was issued or, if present, to testify or produce evidence
therein; and such failure shall be a complete defense
in any proceeding against such person for contempt or
other punishment.
4. Decision to Issue Subpoena
On April 10, 2018, the Judiciary Committee formally invited
Scott Frakes, director of the Department of Correctional
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Services, to testify at the hearing. Frakes did not respond to
the invitation. On April 18, Ebke asked the Executive Board
to provide approval to the Judiciary Committee to issue a sub-
poena and possible subpoenas duces tecum to Frakes. While
there was some discussion at the meeting of the Executive
Board as to whether to give Frakes more time to respond to the
invitation so that he could attend the hearing voluntarily, April
18 was the day of adjournment for the legislative session. A
majority (by one vote) of the Executive Board voted to approve
the Judiciary Committee’s issuance of a subpoena.
(a) Subpoena
A subpoena was issued to Frakes on April 24, 2018. The
subpoena states: “Pursuant to statutory section 50-406 R.R.S.,
the Judiciary Committee of the Nebraska Legislature hereby
compels your presence to testify at 9:00 a.m. on Tuesday,
May 8, 2018, in Room 1113 of the Nebraska State Capitol
Building, 1445 K Street, Lincoln, NE 68508.” The subpoena
was signed by Ebke, as the chairperson of the Judiciary
Committee of the Nebraska Legislature, and by the Clerk of
the Nebraska Legislature.
(b) Informational Letter
On April 25, 2018, the Judiciary Committee sent Frakes
an informational letter pursuant to rule 3, § 21(B)(ii), of the
Rules of the 105th Nebraska Unicameral Legislature. The
letter explained that a majority of the Judiciary Committee
had voted to conduct a hearing related to concerns over
the Department of Correctional Services’ execution protocol
and, after obtaining the approval of the Executive Board, a
majority of the Legislative Council had voted to subpoena
Frakes’ testimony. The Judiciary Committee explained that
after Frakes had ignored a series of attempts to contact him
and make arrangements for his voluntary testimony, the com-
mittee had determined that there was no method other than a
subpoena of securing his attendance at the hearing. The letter
informed Frakes that he could be accompanied at the hearing
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by counsel of his own choosing. It did not specify whether
Frakes would receive any compensation in the form of fees
and allowances for his time.
5. Complaint
On May 1, 2018, before the scheduled date of the hearing,
the Department sued the Senators. The complaint generally set
forth the facts already described and asserted that the district
court had jurisdiction over the action under Neb. Rev. Stat.
§ 24-302 (Reissue 2016) and §§ 25-21,149 and 50-406.
In what was designated as its first cause of action, the
Department focused on its conclusion that § 84-907.10 did
not authorize the Judiciary Committee to hold hearings or
issue subpoenas in relation to internal complaints thereun-
der. The Department requested a declaration that in issuing
the subpoena, the Senators had violated § 50-406 and rule 3,
§ 1 or § 21, of the Rules of the 105th Nebraska Unicameral
Legislature. The Department also asked the court to enjoin the
Senators from future acts violating these provisions.
In its designated second cause of action, the Department
focused on its allegation that the subpoena was not issued in
the discharge of a duty imposed by the Legislative Council,
by statute, or by a resolution of the Legislature, as required by
§ 50-406. According to the Department, all of these duties can
be imposed only by a majority vote of the Legislative Council,
which is the entire Legislature. Because no vote by the entire
Legislature was held in relation to the hearing and subpoena at
issue, the Department asserted that the hearing and subpoena
were not in the discharge of any of the three duties specified
by § 50-406. The Department again requested that the court
declare that the Senators violated § 50-406 and enjoin the
Senators from similar future acts violating § 50-406.
In its designated third cause of action, the Department
focused on allegations that Watermeier had referred Chambers’
internal complaint to the wrong committee, asserting that
the Government, Military and Veterans Affairs Committee
was the standing committee with “subject-matter jurisdiction”
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over the issues involved in the internal complaint. Further, in
its third cause of action, the Department highlighted its alle-
gations that the Senators failed to follow rule 3, § 21(B)(ii),
of the Rules of the 105th Nebraska Unicameral Legislature
by failing to serve Frakes with a copy of the act defining the
purpose of the Judiciary Committee and by not offering to
pay him fees and allowances commensurate with those given
to persons subpoenaed to give testimony in an action pending
in a court. Finally, in its designated third cause of action, the
Department asserted that the vote of the Judiciary Committee
had not been “properly called.” The Department asserted
that in the process of issuing the subpoena, the Senators
had thereby violated rule 3, § 21(A)(i) and (iv) and (B)(ii),
of the Rules of the 105th Nebraska Unicameral Legislature.
The Department asked for a declaration that the Senators
“failed in all material respects to comply with the require-
ments of the Rules of the Nebraska Unicameral Legislature
and accordingly, . . . Frakes is relieved of any requirement to
attend the hearing for which the subpoena was issued pursu-
ant to Rule 3, Section 21(H)(ii) of the Rules of the Nebraska
Unicameral Legislature.”
In its designated fourth cause of action, the Department
asserted that the Senators’ actions were not within the sphere
of legitimate legislative activity and that by virtue of the
subpoena, the Senators sought to exercise a power properly
belonging to the judicial branch by determining a case and
controversy regarding the Department’s compliance with the
Administrative Procedure Act, the constitutionality of the exe-
cution protocol, and any other conflicts between the execu-
tion protocol and state and federal laws and regulations. The
Department requested a declaration that the Senators thereby
violated the separation of powers provision in the Nebraska
Constitution, Neb. Const. art. II, § 1, and asked that the court
enjoin the Senators from future acts violating article II, § 1.
In its fifth and final designated cause of action, the
Department requested that pursuant to § 50-406, the court
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quash the subpoena, due to the alleged violations of Neb.
Const. art. II, § 1; § 50-406; and rule 3, §§ 1 and 21, of the
Rules of the 105th Nebraska Unicameral Legislature.
In its prayer for relief, in addition to the relief requested
within its five causes of action, the Department asked for costs.
6. Motion to Quash
The day after filing its complaint, the Department filed a
motion to quash subpoena. The motion stated that the grounds
for the motion had been set forth in the complaint and included,
but were not limited to, the Senators’ alleged violations when
issuing the subpoena of §§ 50-406 and 84-907.10 and rule 3,
§§ 1 and 21, of the Rules of the 105th Nebraska Unicameral
Legislature. The motion also described that pursuant to
§ 50-406, the matter “‘shall be advanced on the court docket
and heard and decided by the court as quickly as possible.’”
7. Order Staying Subpoena
and H earing
Pursuant to a stipulation, on May 4, 2018, the court stayed
the subpoena and the “subpoena’s hearing date” until “such
time as the Court finally resolves the issues raised in the
Complaint.”
8. Motion to Dismiss
On May 10, 2018, the Senators moved to dismiss the com-
plaint pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(1), (4), (5),
and (6), on the alternative grounds that (1) the named defend­
ants were absolutely immune from litigation pursuant to the
Neb. Const. art. III, § 26, the speech and debate clause; (2)
the judiciary lacks the authority under separation of powers
principles to declare the Judiciary Committee’s actions uncon-
stitutional, issue a permanent injunction against the Judiciary
Committee or its members, quash the subpoena, or enter a
money judgment against the Judiciary Committee or its mem-
bers; (3) § 50-406 is overbroad and violates the speech and
debate and separation of powers clauses to the extent it gives
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courts the power to oversee legislative committees’ authority
to hold public hearings, make specific inquiry or investiga-
tion, compel the production of documents or testimony, and
require a state agency to provide information relevant to the
committee’s work; (4) the Attorney General lacks standing to
sue members of the Legislature, given the Attorney General’s
duty to defend the Legislature imposed by Neb. Rev. Stat.
§ 84-209 (Reissue 2014); and (5) service was improper because
the Attorney General attempted to serve process on each of the
individual defendants by sending the summonses by certified
mail to the Attorney General’s own offices.
9. Hearing on Motion to Dismiss
and Motion to Quash
A hearing was held on the Senators’ motion to dismiss and
the Department’s motion to quash. At the hearing, the Senators
focused on legislative immunity, arguing that the analysis
“starts and ends with” the fact that committee issuance of
investigatory subpoenas is within the legitimate legislative
sphere and thus the district court lacked jurisdiction to “pass
judgment on the committee’s processes and motives for issu-
ing the subpoena.” The Senators asserted that § 50-406 could
not waive, through legislative enactment, a constitutionally
protected immunity.
The Department responded that while it agreed the members
of the Legislature would be immune from litigation stemming
from a lawfully issued subpoena, this subpoena was not law-
fully issued. The Department also asserted that the Senators
could not rely on § 50-406 in issuing the subpoena while at
the same time challenging as unconstitutional the language of
§ 50-406 purporting to grant the district court for Lancaster
County jurisdiction over litigation to compel or quash compli-
ance with authority exercised pursuant to § 50-406.
On the underlying merits of the motion to quash, the
Senators argued that the investigatory subpoena was within
its authority to review and consider whether adjustments are
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necessary to its laws pertaining to the death penalty and del-
egating to the executive branch the development of the death
penalty protocol. The Department argued that the subpoena at
issue was not legislative and that the Senators failed to comply
with the procedure set forth in § 84-907.10.
10. Order Denying Dismissal and
Sustaining Motion to Quash
The court ruled on both the Senators’ motion to dismiss and
the Department’s motion to quash in an order dated August
8, 2018.
The court overruled the Senators’ motion to dismiss. The
court’s reasoning for this ruling was that the motion raised
“several issues, including novel questions under Nebraska’s
Constitution[,] that our appellate courts have not yet addressed.”
Thus, the court “decline[d] to sustain the Motion [to dismiss].”
The court granted the Department’s motion to quash. The
court reasoned that while the subpoena may have satisfied
the requirement that it receive prior approval by a majority
vote of the Executive Board of the Legislative Council, the
subpoena was not “‘[i]n the discharge of any duty imposed
by the Legislative Council, by statute, or by a resolution of
the Legislature . . . .’” The court noted that the Legislative
Council and the Executive Board are distinct decisionmaking
bodies and that § 50-402 refers to the Legislative Council as
having the duty of collecting information, while Neb. Rev.
Stat. § 50-401.01 (Cum. Supp. 2018), describes the Executive
Board’s duties as administrative, such as hiring staff and con-
tracting for professional services. The court did not specifi-
cally address rule 3, § 21, of the Rules of the 105th Nebraska
Unicameral Legislature.
11. Notice of A ppeal and
A ppellate Motions
On August 20, 2018, the Senators filed their notice of
appeal. On January 9, 2019, the 106th Nebraska Legislature
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commenced. Because the 105th Legislature sat in an even year,
the end of the 105th Legislature was the end of a biennium.
The new biennium commenced with the 106th Legislature in
2019. Several of the named senators are no longer in office.
The Department filed a “Suggestion of Mootness” based on
this change of circumstances.
III. ASSIGNMENTS OF ERROR
The Senators assign that the lower court erred in (1) not
finding that the Senators are absolutely immune from liti-
gation under Nebraska’s speech and debate clause; (2) not
finding that § 50-406, on its face, violates the Nebraska
Constitution’s speech and debate and separation of powers
clauses; (3) not finding that § 50-406, as applied to legisla-
tive subpoenas, violates the Nebraska Constitution’s speech
and debate and separation of powers clauses; (4) not finding
that the Attorney General lacked standing or capacity to sue
the Senators; (5) not dismissing the complaint; (6) finding that
the Judiciary Committee was not discharging a duty imposed
by the Legislative Council, by statute, or by resolution in the
Legislature; (7) not finding that the Judiciary Committee had
jurisdiction to investigate, hold hearings, and issue subpoenas
independent of § 50-406; and (8) granting the Department’s
motion to quash.
IV. STANDARD OF REVIEW
[1,2] Because mootness is a justiciability doctrine that oper-
ates to prevent courts from exercising jurisdiction, we have
reviewed mootness determinations under the same standard of
review as other jurisdictional questions.3 A jurisdictional ques-
tion that does not involve a factual dispute is determined
by an appellate court as a matter of law, which requires the
appellate court to reach a conclusion independent of the lower
court’s decision.4
3
See Al-Ameen v. Frakes, 293 Neb. 248, 876 N.W.2d 635 (2016).
4
Id.
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V. ANALYSIS
[3,4] Mootness is a justiciability doctrine that operates to
prevent courts from exercising jurisdiction.5 An actual case or
controversy is necessary for the exercise of judicial power.6 In
the absence of an actual case or controversy requiring judicial
resolution, it is not the function of the courts to render a judg-
ment that is merely advisory.7 Therefore, as a general rule, a
moot case is subject to summary dismissal.8 It is well estab-
lished that when a party or parties are aware that appellate
issues have become moot during the pendency of the appeal
and such mootness is not reflected in the record, in the interest
of judicial economy, a party may file a suggestion of mootness
in the Nebraska Supreme Court or Nebraska Court of Appeals
as to the issue or issues claimed to be moot.9
[5-8] Mootness refers to events occurring after the filing
of a suit which eradicate the requisite personal interest in
the dispute’s resolution that existed at the beginning of the
litigation.10 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.11 A
moot case is one which seeks to determine a question that no
longer rests upon existing facts or rights—i.e., a case in which
the issues presented are no longer alive.12 The central question
in a mootness analysis is whether changes in circumstances
5
Applied Underwriters v. S.E.B. Servs. of New York, 297 Neb. 246, 898
N.W.2d 366 (2017).
6
Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (2018).
7
BryanLGH v. Nebraska Dept. of Health & Human Servs., 276 Neb. 596,
755 N.W.2d 807 (2008).
8
Id.
9
Id.
10
Nebuda v. Dodge Cty. Sch. Dist. 0062, 290 Neb. 740, 861 N.W.2d 742
(2015).
11
Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018).
12
Id.
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that prevailed at the beginning of litigation have forestalled any
occasion for meaningful relief.13
The change in circumstances that the Department argues
renders this appeal moot is the commencement of the 106th
Legislature. We agree. The underlying complaint challenged
the subpoena that was issued by the 105th Legislature to attend
a hearing to be conducted by the Judiciary Committee of the
105th Legislature. The 105th Legislature, sitting in 2018, was
the last legislative year of a biennium term. The order that is the
subject of this appeal, which quashed the subpoena as unlaw-
fully issued and which refused to dismiss the Department’s
action on the ground of legislative immunity, was issued dur-
ing that prior biennium term and before the commencement of
the present biennium term. The hearing Frakes resisted attend-
ing was never held and, as we will explain, the investigation,
hearing, and subpoena at issue automatically expired upon the
completion of the legislative biennium in which the investiga-
tion took place. This eradicated the requisite personal inter-
est in the dispute’s resolution that existed at the beginning of
the litigation.
[9-12] The typical understanding of state legislative bodies
is that, with the limited exception of valid contractual obliga-
tions with third parties,14 pending matters die at the expiration
of the legislative body’s 2-year term.15 This understanding
derives from policies dating back to British parliamentary
function, which disfavored entrenchment and sought to avoid
the “dead hand problem.”16 Any current legislative body repre-
sents the people who elected it and should have power equal to
13
Nebuda v. Dodge Cty. Sch. Dist. 0062, supra note 10.
14
See State ex rel. Stenberg v. Moore, 249 Neb. 589, 544 N.W.2d 344
(1996).
15
See Aaron-Andrew P. Bruhl, Burying the “Continuing Body” Theory of
the Senate, 95 Iowa L. Rev. 1401 (2010).
16
Id. at 1428. See, McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct. 319, 71
L. Ed. 580 (1927); Thomas Jefferson, A Manual of Parliamentary Practice
for the Use of the Senate of the United States (1801).
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its predecessor.17 The will of the past electorate should not con-
trol the future electorate and its representatives.18 Recognizing
these principles, we held in State ex rel. Stenberg v. Moore 19
that a past legislature impermissibly bound future legislatures
by passing a law declaring null and void certain future legis-
lation in the event it failed to include specified estimates and
appropriations. “‘The authority of a legislature,’” we observed,
“‘is limited to the period of its own existence.’”20 We held that
the law in question violated Neb. Const. art. III, §§ 1, 13, and
14, because it attempted to restrict the constitutional power of
a succeeding legislature to legislate.21
[13] An investigatory committee, “being the mere agency
of the body which appointed it, dies when the body itself
dies, unless it is continued by law.”22 In such circumstances,
an outstanding subpoena to attend an investigatory hearing
by the committee also dies. It is a pending matter that dies
at the expiration of the legislative body’s 2-year term. Thus,
in Eastland v. United States Servicemen’s Fund,23 the U.S.
Supreme Court indicated that an action to enjoin enforcement
of the investigatory subpoena issued by the U.S. House of
Representatives had automatically expired during the pen-
dency of the litigation, due to the cessation of the legislative
term in which an investigatory subpoena had been issued.
In subsequent cases, the U.S. District Court for the District
of Columbia has explicitly held that subpoenas issued by
an investigatory committee of the House of Representatives
17
See Bruhl, supra note 15.
18
See id.
19
State ex rel. Stenberg v. Moore, supra note 14.
20
Id. at 594, 544 N.W.2d at 348, quoting Frost v. State, 172 N.W.2d 575
(Iowa 1969).
21
State ex rel. Stenberg v. Moore, supra note 14.
22
Tipton v. Parker, 71 Ark. 193, 196, 74 S.W. 298, 299 (1903).
23
Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 95 S. Ct.
1813, 44 L. Ed. 2d 324 (1975).
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during one term expire upon a new term, because the prior
House of Representatives has at that point ceased to exist as a
legal entity.24 This, in turn, renders moot any litigation seeking
to avoid or enforce compliance with the subpoena.25 This is
analogous to federal decisions holding that with the expira-
tion of a grand jury, so too expires the ability of the court
to enforce a grand jury subpoena, rendering moot challenges
relating to the subpoena.26
The only state cases addressing the continued life of an
investigatory committee focus on the power of a committee
to act after adjournment sine die, as opposed to the end of a
term, but those courts hold that committees have the authority
to do so only when it is specifically conferred.27 State courts
have not had occasion to address whether investigatory sub-
poenas automatically expire between legislative terms. At least
one state decision has, however, held that subpoenas issued
by standing committees of municipal councils automatically
expire by reason of new elections.28
[14] The general rule is that the period of legislative exis-
tence is its 2-year term, and committee investigations and
attendant subpoenas automatically expire upon the expira-
tion of that term. It is true that the U.S. Senate, as opposed
to the House of Representatives, has been characterized as
a “‘continuing body.’”29 This is by virtue of the fact that its
24
See, Committee on Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008);
United States v. American Tel. & Tel. Co., 551 F.2d 384 (D.C. Cir. 1976).
25
See id.
26
See, In re Grand Jury Proceedings, 744 F.3d 211 (1st Cir. 2014); Loubriel
v. United States, 9 F.2d 807 (2d Cir. 1926); United States v. Collins, 146 F.
553 (D. Or. 1906).
27
See 1 Norman J. Singer and J.D. Shambie Singer, Sutherland Statutory
Construction § 12:17 (7th ed. 2010). See, also, Tipton v. Parker, supra note
22; Brown et al., Aplnts. v. Brancato et al., 321 Pa. 54, 184 A. 89 (1936).
28
See Balt. v. Comm. on Legislative Invest., 341 Md. 23, 668 A.2d 33
(1995).
29
McGrain v. Daugherty, supra note 16, 273 U.S. at 181.
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members are elected for 6 years and so divided into classes
that the seats of only one-third become vacant at the end of
each Congress, with two-thirds (or a quorum) always con-
tinuing into the next Congress, save as vacancies may occur
through death or resignation.30 Further, the Senate, unlike the
House of Representatives, does not adopt new procedural rules
or readopt the old procedural rules upon each new term; the
old rules of the Senate remain in effect and are revised only
on rare occasion.31 But even with such continuing existence, it
is not entirely clear that Senate investigatory subpoenas auto-
matically continue to be enforceable after the Senate’s term
has ended, without reissuance or other affirmative acts by the
senators holding office in the new term.32 It has been held that
even the Senate cannot exercise its inherent contempt powers
to enforce an investigatory subpoena after adjournment sine
die—let alone after expiration of its term.33
[15,16] In any event, no state legislative body has been
similarly described as a “continuing body.” We hold that the
Nebraska Unicameral Legislature, while unique because it is
not a bicameral system, is likewise not a “continuing body.”
The Nebraska Constitution is not a grant, but, rather, is a
restriction on the legislative power 34 in light of the otherwise
“plenary power of the people of each state to do as they will.”35
The constitutional provisions restricting the power of the leg-
islature describe 2-year biennium terms that begin with odd-
numbered years and end with the following even-numbered
30
See id.
31
Bruhl, supra note 15.
32
See, Eastland v. United States Servicemen’s Fund, supra note 23; Bruhl,
supra note 15. See, also, Marshall v. Gordon, 243 U.S. 521, 37 S. Ct. 448,
61 L. Ed. 881 (1917); United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970).
But see 28 U.S.C. § 1365 (2012).
33
See United States v. Fort, supra note 32. But see 28 U.S.C. § 1365.
34
State ex rel. Stenberg v. Moore, supra note 14.
35
16 Am. Jur. 2d Constitutional Law § 42 at 384 (2009).
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year. Neb. Const. art. III, § 10, describes the length of legis-
lative sessions in odd versus even-numbered years and states
that only in an odd-numbered year may “[b]ills and resolu-
tions under consideration by the Legislature upon adjournment
. . . be considered at the next regular session, as if there had
been no such adjournment.” There is no analogous constitu-
tional provision for the U.S. Senate. Furthermore, approxi-
mately one-half of the members of the Nebraska Unicameral
Legislature are subject to staggered elections for their 4-year
terms,36 not the mere one-third of the U.S. Senate. And the
existence of staggered elective terms, which seems to be the
only basis for equating our Legislature to the U.S. Senate, is a
relatively new phenomenon. In the bicameral era, members of
the Legislature, including both the House of Representatives
and the Senate, were elected for terms consisting of only 2
years.37 At the inception of the unicameral era, the members
of the new one-house Legislature were elected only for 2-year
terms.38 This continued, despite an intervening constitutional
amendment,39 until the voters adopted an amendment for stag-
gered 4-year terms in 1962.40 The parties have not pointed to,
nor has our research disclosed, any legislative text or history
from 1962 stating any intent to make the Nebraska Legislature
a “continuing body.” 41 Finally, unlike in the Senate, all pro-
cedural rules of the Nebraska Unicameral Legislature are
adopted by a majority vote at the “commencement of each
regular session in odd-numbered years,” and the adopted rules
“govern the Legislature for a period of two years.” 42 This
36
See, Neb. Const. art. III, § 7; Neb. Rev. Stat. § 32-508 (Reissue 2016).
37
See, Neb. Const. art. II, § 4 (1875); Neb. Const. art. III, § 7 (1920).
38
See Neb. Const. art. III, § 7 (1935).
39
See id. (1961).
40
See id. (1963).
41
See 1961 Neb. Laws, ch. 247, § 1, p. 733.
42
Rule 2, § 1(a), Nebraska Unicameral Legislature, 106th Leg., 1st Sess. 9
(2019). See, also, id., 105th Leg., 2d Sess. 9 (2018).
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demonstrates the Legislature’s collective understanding that
it is not a “continuing body,” but, rather, is a new Legislature
established at the regular legislative session commencing in
each odd-numbered year. Obviously, that session would next
follow the general election in each even-numbered year, at
which a new term begins for approximately one-half of its
members. The Legislature itself numbers its sessions consist­
ent with that understanding.
[17,18] Because the Nebraska Legislature is not a “continu-
ing body,” a particular legislature’s biennium period of exis-
tence ceases at the end its biennium term. Like other pending
matters, committee investigations and attendant subpoenas are
presumed to cease to exist at the end of the term in which they
commenced. The committee investigation dies when the body
dies, unless it is continued by a valid law.
[19] And there is no applicable statute or legislative rule
providing for the continuing viability of pending subpoenas
issued by an investigatory committee of a prior biennium
term. We need not decide whether such a statute or rule, if it
existed, would be an impermissible restriction on future leg-
islatures, like the statute addressed in State ex rel. Stenberg v.
Moore.43 The applicable statutes and procedural rules of the
105th Legislature contemplated the expiration of investiga-
tory committees at the end of each biennium term and, by
necessary implication, the expiration of the expired commit-
tees’ pending hearings and attendant subpoenas. Neb. Rev.
Stat. § 50-410 (Reissue 2010), describes that the Legislative
Council “shall meet at least once in each biennium.” Rule
3, § 2(c), provided that the membership of all standing and
select committees shall continue only during the duration of
the biennium. Under this rule, new membership of commit-
tees was to be appointed at the beginning of each session
beginning in odd-numbered years and continue only until the
regular session in the next subsequent odd-numbered year.
43
State ex rel. Stenberg v. Moore, supra note 14.
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Similarly, at the commencement of each regular session in
odd-­ numbered years, new members of the executive board
were to be elected.44
While rule 3, § 1(b), described the power of committees to
sit and act during session, recesses, and adjourned periods, and
it stated that committees had “jurisdiction” “until final report,”
it did not purport to address a new biennium legislative term
and the survivability of subpoenas beyond the commencement
of the odd-numbered year during which the committee will
be reconstituted with new members. Further, rule 3, § 1(c),
explained that “[n]o committee may exercise any of the above
mentioned powers in a manner contrary to the Rules of the
Legislature or in a manner which exceeds the scope of the act
defining the purpose of the committee.”
Thus, the Judiciary Committee’s investigation at issue in
this appeal automatically expired with the expiration of the
Legislature in which it had begun, and the subpoena that
was the subject of the district court’s order presently appealed
from died with it. While it might be argued under different
circumstances that a failure to appear, as subpoenaed, at a
past legislature’s investigatory hearing is a historical fact
subjecting the witness to contempt even after a new legis-
lature commences, that did not occur here. The scheduled
hearing was never held. Because the subpoena has expired
and the hearing was never held, no real controversy pres-
ently exists regarding the subpoena’s enforceability against
Frakes.
As the enforceability against Frakes was the only issue
determined in the court’s order quashing the subpoena pursu-
ant to § 50-406, the court’s order in that regard is moot. It
follows that no real controversy presently exists concerning
the Senators’ immunity defenses to Frakes’ challenges under
§ 50-406 to the subpoena’s enforceability, and the district
court’s order denying the Senators’ motion to dismiss Frakes’
44
Rule 1, § 1.
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challenges under § 50-406 are likewise moot.45 We do not
consider to be presently before us in this interlocutory appeal
the court’s ruling on the Senators’ motion to dismiss as it per-
tained to other claims brought by the Department outside of
§ 50-406 and, thus, outside of a special proceeding.46 Those
claims appear to still be pending below, and the Department
is free to voluntarily dismiss those claims or either party
may request a ruling by the district court that the claims
are moot.
[20,21] Under certain circumstances, an appellate court
may entertain the issues presented by a moot case when the
claims presented involve a matter of great public interest or
when other rights or liabilities may be affected by the case’s
determination.47 In determining whether the public interest
exception should be invoked, the court considers the public
or private nature of the question presented, the desirability
of an authoritative adjudication for future guidance of public
officials, and the likelihood of future recurrence of the same
or a similar problem.48 While this case involves questions of
a public nature, it is not at all clear that the same or a similar
problem is likely to recur and, relatedly, that there is a need
to provide future guidance for public officials. Indeed, in the
event that the Judiciary Committee of the current or future
bienniums were to similarly issue a similar subpoena, the
statutes and rules governing the issuance, enforcement, and
resistance to investigatory subpoenas may have changed. We
will not issue an opinion on a hypothetical set of facts that are
unlikely to recur.
45
See, Alabama v. North Carolina, 560 U.S. 330, 130 S. Ct. 2295, 176 L.
Ed. 2d 1070 (2010); Pennsylvania v. Lockheed Martin Corp., 681 F.3d 503
(3d Cir. 2012).
46
See, Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017); State v.
Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005); Neb. Rev. Stat. §§ 25-1301
(Cum. Supp. 2018) and 25-1911 and 25-1902 (Reissue 2016).
47
Weatherly v. Cochran, supra note 6.
48
Id.
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VI. CONCLUSION
Because the Nebraska Legislature, like most state legisla-
tive entities, is not a continuing body, the subpoenas at issue
expired at the commencement of the 106th Legislature. Even
if we were to agree with the Senators’ legal position, we could
not grant the relief they seek. This prevents this court from
reaching the substantive issues raised by the parties.
We therefore dismiss the appeal as moot. We also dismiss
as moot the Department’s appellate motion to substitute the
named senators who are no longer in office with their suc-
cessors in the 106th Nebraska Legislature, which motion the
Department explained “should not be construed as conceding
any issue pertaining to the continued justiciability of this case
on mootness or any other basis.” The Department is free to
make such motion below if it wishes to still pursue any claims
set forth in the complaint outside of § 50-406.
A ppeal and motion to substitute
parties dismissed.
Miller‑Lerman, J., concurring.
I concur in the per curiam decision, but write separately to
address the timing of a future similar case, if any.
Among the features of Nebraska’s unique Unicameral sys-
tem is the fact that the Legislature reconstitutes itself every 2
years. The Nebraska Legislature is not a continuing body. As a
result, the subpoena issued by the 105th Legislature ceased to
be a demand of the Legislature and issues related to its issu-
ance became moot.
This circumstance leaves unanswered the underlying sub-
stantive issues identified in the per curiam opinion including:
whether the Nebraska Department of Correctional Services’
rules and regulations outlining the protocol for execution of
the death penalty, and the process by which the protocol was
adopted, were constitutional and consistent with Nebraska stat-
utes; whether delegation of development of the death penalty
protocol to the executive branch would benefit from more
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strict legislative boundaries; whether the department followed
applicable state and federal law in selecting the substances for
lethal injection; and whether notices and public access to vari-
ous documents were consistent with Nebraska statutes.
The foregoing issues could be addressed by a similar sub-
poena issued by the 106th Legislature timed in a manner which
would forestall mootness. Were the current or future Legislatures
to act earlier in the biennium, a court challenge, if any, could
mature and the Judiciary at all levels would be obligated to
advance consideration of the case.