Sandoval v. Ricketts , 302 Neb. 138 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/22/2019 01:08 PM CDT
    - 138 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SANDOVAL v. RICKETTS
    Cite as 
    302 Neb. 138
    Jose Sandoval et al., appellants and cross-appellees,
    v. John Peter R icketts, Governor of the State
    of Nebraska, et al., appellees, Don Stenberg,
    Nebraska State Treasurer, et al., appellees
    and cross-appellants, and A rthur L. Gales
    et al., appellees and cross-appellees.
    ___ N.W.2d ___
    Filed January 25, 2019.   No. S-18-390.
    1.	 Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
    dictional issue which does not involve a factual dispute is a matter of
    law which requires an appellate court to reach its conclusions indepen-
    dent from a trial court.
    2.	 Motions to Dismiss: Pleadings: Appeal and Error. An appellate court
    reviews a district court’s order granting a motion to dismiss de novo,
    accepting the allegations in the complaint as true and drawing all rea-
    sonable inferences in favor of the nonmoving party.
    3.	 Jurisdiction: Appeal and Error. Before reaching the legal issues
    presented for review, it is the duty of an appellate court to determine
    whether it has jurisdiction over the appeal.
    4.	 Declaratory Judgments. An action for a declaratory judgment will not
    lie where another equally serviceable remedy is available.
    Appeal from the District Court for Lancaster County: John
    A. Colborn, Judge. Affirmed.
    Brian William Stull, of American Civil Liberties Union
    Foundation, Amy A. Miller, of American Civil Liberties Union
    of Nebraska Foundation, Christopher L. Eickholt, of Eickholt
    Law, L.L.C., and Brett J. Williamson, Luann Simmons, and
    Bill Trac, of O’Melveny & Myers, L.L.P., for appellants.
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SANDOVAL v. RICKETTS
    Cite as 
    302 Neb. 138
    Douglas J. Peterson, Attorney General, and Ryan S. Post for
    appellees John Peter Ricketts et al.
    Bartholomew L. McLeay, of Kutak Rock, L.L.P., for appel-
    lee John Peter Ricketts in his individual capacity.
    J.L. Spray and Christina L. Usher, of Mattson Ricketts Law
    Firm, and Ryan K. McIntosh, of Brandt, Horan, Hallstrom &
    Sedlacek, for appellees Don Stenberg et al.
    Tracy Hightower-Henne, of Hightower Reff Law, and Kevin
    Barry, of Quinnipiac University School of Law Legal Clinic,
    for amici curiae Legal Scholars.
    Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ., and
    Pirtle and R iedmann, Judges.
    Heavican, C.J.
    INTRODUCTION
    Plaintiffs are eight death row inmates. The inmates filed
    suit seeking a declaratory judgment that 2015 Neb. Laws, L.B.
    268, which abolished the death penalty in Nebraska, was not
    repealed by referendum. The inmates further sought injunctive
    relief preventing the Department of Correctional Services and
    its director, Scott R. Frakes, from carrying out executions or
    steps toward execution against any plaintiffs or indispensable
    parties. The Lancaster County District Court dismissed the
    complaint for failure to state a claim. The inmates appeal. We
    affirm the district court’s dismissal.
    BACKGROUND
    Plaintiffs in this case are Jose Sandoval, Roy L. Ellis, Jorge
    Galindo, Nikko Jenkins, John L. Lotter, Raymond Mata, Marco
    E. Torres, and Eric F. Vela (the inmates). Indispensable parties
    are Arthur L. Gales, Jeffrey Hessler, and Carey Dean Moore.
    The inmates and indispensable parties were all convicted of
    first degree murder and sentenced to death. Since the filing of
    the complaint, Moore has been executed.
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SANDOVAL v. RICKETTS
    Cite as 
    302 Neb. 138
    The Nebraska Legislature passed L.B. 268 over the veto of
    Governor John Peter Ricketts on May 27, 2015. L.B. 268 abol-
    ished the death penalty in Nebraska. The Legislature adjourned
    on May 29; under Neb. Const. art. III, § 27, L.B. 268 would
    take effect on August 30.
    Following the passage of L.B. 268, opponents of the bill
    organized as “Nebraskans for the Death Penalty, Inc.,” and, on
    June 1, 2015, filed documents with the Nebraska Secretary of
    State seeking a referendum to repeal L.B. 268. On August 26,
    the opponents so organized filed with the Secretary of State
    petitions purporting to include the signatures of approximately
    166,000 Nebraskans in support of the referendum. On October
    16, the Secretary of State’s office announced that verification
    of those signatures was complete and that enough signatures
    (in this case 143,000) had been verified to suspend the opera-
    tion of L.B. 268. During the November 8 election, a vote was
    held on the referendum. The referendum passed, and L.B. 268
    was repealed.
    The complaint in this case was filed on December 4, 2017,
    and seeks declaratory and injunctive relief. Defendants in this
    action are Ricketts (in both his individual and official capaci-
    ties), State Treasurer Don Stenberg (in both his individual and
    official capacities), Attorney General Doug Peterson (in only
    his official capacity), Frakes (in only his official capacity),
    Judy Glassburner, Aimee Melton, and Bob Evnen.
    Count I seeks a declaratory judgment that the referendum
    was not legally sufficient or effective because members of the
    executive branch, including Ricketts and Stenberg, proposed,
    initiated, financed, organized, managed, and directed the proc­
    ess, in violation of the Nebraska Constitution’s separation of
    powers provision.
    Count II seeks a declaratory judgment that the referendum
    against L.B. 268 failed for lack of a sworn statement from the
    sponsors stating that the list of identified sponsors was truth-
    ful and accurate.
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SANDOVAL v. RICKETTS
    Cite as 
    302 Neb. 138
    Count III seeks a declaratory judgment that the punishments
    for the inmates and the indispensable parties (except Jenkins,
    who was not sentenced to death as of May 30, 2017) were, by
    operation of law, converted into sentences of life imprisonment
    on August 30, 2015, and that the August 26 filing of unverified
    signatures did not suspend the effect of L.B. 268. Moreover,
    the October 15 announcement that sufficient signatures had
    been verified did not reinstate the death penalty for those indi-
    viduals whose penalties had been changed to life imprisonment
    on August 30.
    Defendants filed motions to dismiss, which were granted by
    the district court. The court reasoned that (1) the inmates had
    equally serviceable remedies, (2) the inmates failed to state
    a claim that Ricketts or Stenberg violated the separation of
    powers doctrine, (3) L.B. 268 never took effect, and (4) the
    Legislature lacked the power to modify the inmates’ sentences.
    The inmates appeal.
    ASSIGNMENTS OF ERROR
    The inmates assign, renumbered and restated, that the district
    court erred in finding that (1) the inmates had other serviceable
    remedies; (2) L.B. 268 was suspended on August 26, 2015,
    upon the filing of unverified signatures; (3) the Legislature
    was without the power to modify the inmates’ sentences from
    death to life imprisonment; and (4) the inmates failed to state
    a cause of action under the separation of powers provisions of
    the Nebraska Constitution, and by failing to allow the inmates
    to amend their pleading to state a claim.
    On cross-appeal, defendants Stenberg, Glassburner, Melton,
    and Evnen assign that the district court erred in not finding
    they were misjoined parties and not accordingly dismissing
    them from the action.
    STANDARD OF REVIEW
    [1] Determination of a jurisdictional issue which does not
    involve a factual dispute is a matter of law which requires an
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SANDOVAL v. RICKETTS
    Cite as 
    302 Neb. 138
    appellate court to reach its conclusions independent from a
    trial court.1
    [2] An appellate court reviews a district court’s order grant-
    ing a motion to dismiss de novo, accepting the allegations in
    the complaint as true and drawing all reasonable inferences in
    favor of the nonmoving party.2
    ANALYSIS
    Subject Matter Jurisdiction.
    [3] Before reaching the legal issues presented for review, it
    is the duty of an appellate court to determine whether it has
    jurisdiction over the appeal.3 In this case, defendants sought
    dismissal on the basis of the district court’s jurisdiction. The
    district court implicitly rejected this argument, and defendants
    again raise it here. They argued that the inmates
    filed a civil declaratory judgment action to collaterally
    attack their final death penalty sentences ordered by other
    district courts who had jurisdiction over [the inmates]
    and their crimes, which sentences were final after having
    been affirmed on appeal by the Nebraska Supreme Court.
    In short, [the inmates] filed the wrong procedure in the
    wrong court against the wrong defendants to obtain the
    remedy of having their death penalty sentences vacated
    and enjoined from being carried out.4
    We disagree. Plainly, a district court has jurisdiction to hear
    and decide a declaratory judgment action.5 But defendants’
    argument regarding jurisdiction certainly touches on the allega-
    tions made by the inmates and whether those allegations stated
    1
    State v. Lotter, 
    301 Neb. 125
    , 
    917 N.W.2d 850
    (2018).
    2
    Chafin v. Wisconsin Province Society of Jesus, 
    301 Neb. 94
    , 
    917 N.W.2d 821
    (2018).
    3
    State ex rel. Rhiley v. Nebraska State Patrol, 
    301 Neb. 241
    , 
    917 N.W.2d 903
    (2018).
    4
    Brief for appellees Ricketts et al. at 17.
    5
    Neb. Rev. Stat. § 25-21,149 (Reissue 2016).
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SANDOVAL v. RICKETTS
    Cite as 
    302 Neb. 138
    a claim for which relief could be granted (i.e., the merits of this
    appeal). We now turn to that question.
    Equally Serviceable Remedies.
    The inmates argue that the district court erred in finding
    they could not maintain a declaratory judgment claim because
    they had other equally serviceable remedies—in their cases,
    postconviction actions arguing that their death sentences were
    void as a result of L.B. 268.
    [4] We have held under similar circumstances that an action
    for a declaratory judgment does not lie where another equally
    serviceable remedy is available.6 In Hall v. State, the defendant
    was convicted of second degree murder and sentenced to life
    imprisonment. This court affirmed that conviction and sentence
    and later dismissed an appeal of the denial of the defendant’s
    motion seeking postconviction relief. The defendant then filed
    three motions seeking declaratory judgments and a second
    petition for postconviction relief. In those motions, he sought a
    finding that the second degree murder statute was unconstitu-
    tionally vague and overbroad.
    We rejected the defendant’s argument that declaratory judg-
    ment was an available remedy, observing that he had the
    opportunity to challenge the constitutionality of the relevant
    statutes in the criminal proceedings against him, through his
    direct appeal or a postconviction motion, but failed to do
    so. The defendant’s motions seeking a declaratory judgment
    were a collateral attack on his convictions. We also dismissed
    his postconviction motion seeking similar relief as procedur-
    ally barred.
    We addressed a similar situation in State v. Dunster.7 In
    Dunster, the defendant filed a motion for new trial and a
    motion to vacate his death sentence. He asked us to recognize
    a new procedure for the purpose of challenging a purportedly
    6
    Hall v. State, 
    264 Neb. 151
    , 
    646 N.W.2d 572
    (2002).
    7
    State v. Dunster, 
    270 Neb. 773
    , 
    707 N.W.2d 412
    (2005).
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    SANDOVAL v. RICKETTS
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    302 Neb. 138
    void sentence. We declined that invitation, noting that a post-
    conviction motion, properly made, would be available to assert
    that one’s sentence was void.
    In this case, the record establishes that Jenkins’ direct appeal
    is pending and that the other inmates have filed motions seek-
    ing postconviction relief. Each has raised the assertion that his
    death sentence or sentences are unconstitutional and void under
    L.B. 268. While we decline to hold that a postconviction action
    will always be the correct procedure, it is available here and
    provides all but Jenkins with a remedy which, compared to the
    declaratory judgment sought, is equally serviceable. Jenkins’
    equally serviceable remedy is his pending direct appeal.
    We conclude that the inmates have equally serviceable rem-
    edies and accordingly affirm the district court’s dismissal of
    their declaratory judgment action. We need not reach the
    inmates’ remaining assignments of error or the cross-appeal
    filed by Stenberg, Glassburner, Melton, and Evnen.
    CONCLUSION
    We affirm the decision of the district court dismissing
    the inmates’ suit because other equally serviceable remedies
    were available.
    A ffirmed.
    Miller-Lerman and Freudenberg, JJ., not participating.
    

Document Info

Docket Number: S-18-390

Citation Numbers: 302 Neb. 138

Filed Date: 1/25/2019

Precedential Status: Precedential

Modified Date: 3/20/2020

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