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05/20/2016 09:07 AM CDT




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                                          Nebraska A dvance Sheets
                                           293 Nebraska R eports
                                                 ADAMS v. STATE
                                                Cite as 293 Neb. 612




                                        Brian J. A dams, appellant, v.
                                        State of Nebraska Board of
                                          Parole et al., appellees.
                                                  ___ N.W.2d ___

                                         Filed May 20, 2016.     No. S-15-612.

                1.	 Motions to Dismiss: Appeal and Error. A district court’s grant of a
                     motion to dismiss is reviewed de novo.
                2.	 Constitutional Law: Statutes. The constitutionality of a statute pre­
                     sents a question of law.
                3.	 Declaratory Judgments: Appeal and Error. When a declaratory judg-
                     ment action presents a question of law, an appellate court has an obliga-
                     tion to reach its conclusion independently of the conclusion reached by
                     the trial court with regard to that question.
                4.	 Constitutional Law: Statutes: Presumptions. A statute is presumed
                     to be constitutional, and all reasonable doubts are resolved in favor of
                     its constitutionality.
                5.	 Constitutional Law: Statutes: Proof. The burden of establishing the
                     unconstitutionality of a statute is on the one attacking its validity.
                 6.	 ____: ____: ____. The unconstitutionality of a statute must be clearly
                     established before it will be declared void.
                7.	 Constitutional Law. Nebraska’s separation of powers clause prohibits
                     the three governmental branches from exercising the duties and preroga-
                     tives of another branch.
                 8.	 ____. The separation of powers clause prohibits a branch from improp-
                     erly delegating its own duties and prerogatives—except as the constitu-
                     tion directs or permits.
                9.	 Constitutional Law: Judicial Construction. Deciding whether the
                     Nebraska Constitution has committed a matter to another governmental
                     branch, or whether the branch has exceeded its authority, is a delicate
                     exercise in constitutional interpretation.
               10.	 Constitutional Law: Probation and Parole. The Nebraska Constitution
                     vests the Board of Parole with the power to grant paroles.
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                                ADAMS v. STATE
                               Cite as 293 Neb. 612

11.	 Legislature: Sentences: Probation and Parole. The Legislature has
     declared that every committed offender shall be eligible for parole when
     the offender has served one-half the minimum term of his or her sen-
     tence, as adjusted for good time.
12.	 Constitutional Law: Intent. Constitutional provisions are not open to
     construction as a matter of course; construction is appropriate only when
     it has been demonstrated that the meaning of the provision is not clear
     and that construction is necessary.
13.	 Constitutional Law: Courts: Intent. If the meaning is clear, the
     Nebraska Supreme Court gives a constitutional provision the meaning
     that laypersons would obviously understand it to convey.
14.	 Constitutional Law: Criminal Law: Probation and Parole. The
     conditions clause of Neb. Const. art. IV, § 13, gives the Board of
     Parole power to grant paroles after conviction and judgment, under
     such conditions as may be prescribed by law, for any offenses commit-
     ted against the criminal laws of this state except treason and cases of
     impeachment.
15.	 Constitutional Law: Legislature: Probation and Parole. The condi-
     tions clause of Neb. Const. art. IV, § 13, permits the Legislature to
     enact laws placing conditions on when a committed offender is eligible
     for parole.

   Appeal from the District Court for Lancaster County:
A ndrew R. Jacobsen, Judge. Affirmed.
  Jonathan J. Papik and Stephen E. Gehring, of Cline,
Williams, Wright, Johnson & Oldfather, L.L.P., for appellant.
   Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
  Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and K elch, JJ., and R iedmann, Judge.
      Cassel, J.
                         INTRODUCTION
   As interpreted by this court, a statute1 disqualifies a con-
victed offender sentenced to life imprisonment from parole eli-
gibility until the life sentence is commuted to a term of years.

 1	
      Neb. Rev. Stat. § 83-1,110(1) (Reissue 2014).
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                                ADAMS v. STATE
                               Cite as 293 Neb. 612

An inmate challenged the statute’s constitutionality, claiming
that it violated the constitutional authority of Nebraska’s Board
of Parole (Board) to grant paroles.2 The district court disagreed
and dismissed the action. Because we conclude that the statute
properly exercises the Legislature’s constitutional power to
prescribe “conditions” for paroles,3 we affirm the judgment of
the district court.
                       BACKGROUND
   Occasionally, the constitutional separation of powers4 gen-
erates a dispute between two separate and coequal branches
of state government. The Nebraska Constitution confers on
the Board the power to grant paroles. The constitution also
empowers the Legislature to define crimes and fix their punish-
ment.5 But in the case before us, both branches agree that the
Board lacks the power to do what the inmate desires. Thus, the
dispute is between the inmate and the State.
   The dispute focuses on a provision conferring upon the
Board, or a majority of its members, the “power to grant
paroles after conviction and judgment, under such conditions
as may be prescribed by law, for any offenses committed
against the criminal laws of this state except treason and cases
of impeachment.”6 We will refer to the italicized language as
the “conditions clause.”
   A Nebraska statute addresses parole eligibility. Section
83-1,110(1) provides:
     Every committed offender shall be eligible for parole
     when the offender has served one-half the minimum term
     of his or her sentence as provided in sections 83-1,107
     and 83-1,108. The board shall conduct a parole review

 2	
      See Neb. Const. art. IV, § 13.
 3	
      See id.
 4	
      See Neb. Const. art. II, § 1.
 5	
      See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
 6	
      Neb. Const. art. IV, § 13 (emphasis supplied).
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                        Nebraska A dvance Sheets
                         293 Nebraska R eports
                               ADAMS v. STATE
                              Cite as 293 Neb. 612

      not later than sixty days prior to the date a committed
      offender becomes eligible for parole as provided in this
      subsection, except that if a committed offender is eligible
      for parole upon his or her commitment to the department,
      a parole review shall occur as early as is practical. No
      such reduction of sentence shall be applied to any sen-
      tence imposing a mandatory minimum term.
Because it is impossible to determine when an offender
has served one-half of a life sentence, we have interpreted
§ 83-1,110(1) to mean that an inmate sentenced to life impris-
onment is not eligible for parole until the Board of Pardons
commutes the sentence to a term of years.7
   Brian J. Adams, an inmate serving two sentences of life
imprisonment, brought a declaratory judgment action against
the Board and its individual members. He sought a determina-
tion that § 83-1,110(1) was an unconstitutional usurpation of
the authority conferred upon the Board and a declaration that
he was eligible for parole. The Board and its individual mem-
bers, in their official capacities, filed a motion to dismiss for
failure to state a claim upon which relief could be granted.
   The district court granted the motion to dismiss Adams’
complaint. The court reasoned that the commutation require-
ment was a “condition” prescribed by the Legislature within
the meaning of the conditions clause and that the conditions
clause authorized the Legislature to condition parole eligi-
bility on the commutation of a life sentence, as long as the
offender was not convicted of treason or impeachment. The
court concluded that the conditions clause “reserves to the
Legislature the ability to add to or subtract from the [Board’s]
power to grant paroles in all cases except in cases of treason
or impeachment.”
   Adams filed a timely appeal, and we granted his petition to
bypass review by the Nebraska Court of Appeals.

 7	
      See Poindexter v. Houston, 275 Neb. 863, 750 N.W.2d 688 (2008).
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                        Nebraska A dvance Sheets
                         293 Nebraska R eports
                              ADAMS v. STATE
                             Cite as 293 Neb. 612

                 ASSIGNMENTS OF ERROR
   Adams assigns three errors but, restated and consolidated,
they present one issue: Whether the district court erred in con-
cluding that § 83-1,110(1) does not violate Neb. Const. art. IV,
§ 13.
                   STANDARD OF REVIEW
   [1-3] A district court’s grant of a motion to dismiss is
reviewed de novo.8 The constitutionality of a statute presents a
question of law.9 When a declaratory judgment action presents
a question of law, an appellate court has an obligation to reach
its conclusion independently of the conclusion reached by the
trial court with regard to that question.10
                             ANALYSIS
              Principles Governing Constitutional
                             Challenge
   [4-6] The principles applicable to a constitutional challenge
to a state statute are well known. A statute is presumed to be
constitutional, and all reasonable doubts are resolved in favor
of its constitutionality.11 The burden of establishing the uncon-
stitutionality of a statute is on the one attacking its validity.12
The unconstitutionality of a statute must be clearly established
before it will be declared void.13
                    Separation of Powers
   [7-9] Nebraska’s separation of powers clause14 prohibits the
three governmental branches from exercising the duties and

 8	
      Neun v. Ewing, 290 Neb. 963, 863 N.W.2d 187 (2015).
 9	
      Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015).
10	
      Board of Trustees v. City of Omaha, 289 Neb. 993, 858 N.W.2d 186
      (2015).
11	
      Big John’s Billiards v. State, 288 Neb. 938, 852 N.W.2d 727 (2014).
12	
      Id.
13	
      Id.
14	
      Neb. Const. art. II, § 1.
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                        Nebraska A dvance Sheets
                         293 Nebraska R eports
                               ADAMS v. STATE
                              Cite as 293 Neb. 612

prerogatives of another branch.15 It also prohibits a branch
from improperly delegating its own duties and preroga-
tives—except as the constitution directs or permits.16 Deciding
whether the Nebraska Constitution has committed a matter
to another governmental branch, or whether the branch has
exceeded its authority, is a delicate exercise in constitutional
interpretation.17
   All three governmental branches play a part in a convicted
offender’s sentencing. The Legislature declares the law and
public policy by defining crimes and fixing their punishment.
The responsibility of the judicial branch is to apply those
punishments according to the nature and range established by
the Legislature.18 The executive branch exercises prosecuto-
rial discretion.19 This includes the power to determine what,
if any, charges should be brought against a person accused
of committing a crime.20 And another function of the execu-
tive branch is to commute sentences and to grant paroles
and pardons.21
   [10] The Board falls under the executive branch, and its
powers are prescribed by the Nebraska Constitution and by
statute. The constitution vests the Board with the power to
grant paroles.22 A statute authorizes the Board to, among other
things, “[d]etermine the time of release on parole of commit-
ted offenders eligible for such release,”23 “[f]ix the c­ onditions

15	
      In re Petition of Nebraska Community Corr. Council, 274 Neb. 225, 738
      N.W.2d 850 (2007).
16	
      Id.
17	
      Id.
18	
      State v. Huff, supra note 5.
19	
      See Polikov v. Neth, 270 Neb. 29, 699 N.W.2d 802 (2005).
20	
      Id.
21	
      See State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996).
22	
      See Neb. Const. art. IV, § 13.
23	
      Neb. Rev. Stat. § 83-192(1)(a) (Reissue 2014).
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                                ADAMS v. STATE
                               Cite as 293 Neb. 612

of parole . . . ,”24 and “[d]etermine the time of discharge
from parole.”25
   [11] While the Board determines release on and from
parole, fixing eligibility for parole consideration is within the
province of the Legislature. The Legislature has declared that
“[e]very committed offender shall be eligible for parole when
the offender has served one-half the minimum term of his or
her sentence . . . ,” as adjusted for good time.26 The Legislature
has also provided that certain offenders must complete evalu-
ations and programming before being considered eligible for
parole.27 And the Legislature prescribes when the Board shall
review the record of a committed offender based on the
offender’s parole eligibility date.28
                      Conditions Clause
   [12,13] As in statutory interpretation, the construction of
constitutional provisions requires us to apply basic tenets
of interpretation.29 Constitutional provisions are not open to
construction as a matter of course; construction is appropri-
ate only when it has been demonstrated that the meaning of
the provision is not clear and that construction is necessary.30
If the meaning is clear, we give a constitutional provision
the meaning that laypersons would obviously understand it
to convey.31
   [14] The conditions clause gives the Board “power to grant
paroles after conviction and judgment, under such conditions
as may be prescribed by law, for any offenses committed

24	
      § 83-192(1)(b).
25	
      § 83-192(1)(c).
26	
      See § 83-1,110(1).
27	
      See Neb. Rev. Stat. § 83-1,112.01 (Reissue 2014).
28	
      See § 83-192(1)(f).
29	
      Conroy v. Keith Cty. Bd. of Equal., 288 Neb. 196, 846 N.W.2d 634 (2014).
30	
      Id.
31	
      Id.
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                   Nebraska A dvance Sheets
                    293 Nebraska R eports
                         ADAMS v. STATE
                        Cite as 293 Neb. 612

against the criminal laws of this state except treason and
cases of impeachment.” Adams contends that the conditions
clause prohibits the Legislature from imposing conditions
upon when an offender, other than one convicted of trea-
son or upon impeachment, may become eligible for parole.
We disagree.
   [15] The plain language of the conditions clause recognizes
that the Legislature may place conditions on parole eligibility.
The conditions clause confers on the Board the power to grant
paroles for any offenses except treason and cases of impeach-
ment. But the conditions clause permits the Legislature to
enact laws placing conditions on when a committed offender is
eligible for parole. Thus, a committed inmate must meet statu-
tory requirements—i.e., “conditions”—before being considered
eligible for parole. But once eligible for parole, the Board
alone has authority to grant parole—the Legislature has no
power over the decision whether to grant release on parole. We
conclude that § 83-1,110(1) does not infringe on the Board’s
authority to grant paroles.
   Adams first argues that because the conditions clause gives
the Board the power to grant paroles for “any offenses” aside
from treason or cases of impeachment, the Board must be
authorized to grant paroles in all other cases. It is—so long as
the offender is eligible for parole.
   But Adams extends this argument and, in so doing, misap-
prehends the Legislature’s constitutional authority. He con-
tends that the Legislature may not restrict the Board’s power
by a statute limiting eligibility for parole. But if the Board had
the power to parole any committed offender—without adher-
ing to any conditions on eligibility made by the Legislature—
the Legislature’s authority to determine penalties, includ-
ing the length of time an offender must serve (absent a
pardon or commutation), would be meaningless. Allowing the
Legislature the ability to place conditions on parole eligibil-
ity strikes a balance between the power of the Legislature
to define punishments and the power of the Board to grant
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                          Nebraska A dvance Sheets
                           293 Nebraska R eports
                                 ADAMS v. STATE
                                Cite as 293 Neb. 612

paroles to eligible offenders. And we note that a committed
offender deemed to be ineligible for parole by virtue of a life
sentence may become eligible for parole upon commutation
of the sentence by the Board of Pardons, a department of the
executive branch.

                               History
   Finally, we address Adams’ assertion that the history of
the conditions clause demonstrates its intent was to allow the
Legislature only to establish conditions that a parolee must
follow in order to maintain his or her parole status. To the con-
trary, the history of article IV, § 13, supports our interpretation
of the conditions clause.
   The Nebraska Constitution initially gave clemency power to
the Governor alone. The conditions clause stated in part:
         The governor shall have the power to grant reprieves,
      commutations and pardons after conviction, for all
      offenses, except treason and cases of impeachment, upon
      such conditions and with such restrictions and limitations
      as he may think proper, subject to such regulations as may
      be provided by laws relative to the manner of applying
      for pardons.32
Thus, the Governor alone had the power to grant a pardon, but
the Legislature was authorized to control the manner of apply-
ing for a pardon.
   A statute enacted in 1893 further gave the Governor the
power to parole any prisoner, subject to certain conditions.33
The Governor could parole any prisoner, other than one con-
victed of murder in the first or second degree, “who may have
served the minimum term provided by law for the crime for
which he was convicted (and who has not previously been
convicted of a felony and served a term in any penal i­nstitution

32	
      Neb. Const. art. V, § 13 (1875).
33	
      See Comp. Stat. § 7305 (1897).
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                                ADAMS v. STATE
                               Cite as 293 Neb. 612

within the United States of America).”34 The Governor was
authorized to parole a prisoner convicted of murder in the first
or second degree “who has now, or hereafter shall have served
twenty-five full years.”35 Through this statute, the Legislature
placed conditions on a prisoner’s eligibility for parole by
the Governor.
   The conditions clause was amended following the Nebraska
Constitutional Convention of 1919-20. The pardoning power
was the subject of several proposals, and members expressed
concern about the great number of pardons and conditional
paroles being granted by the various governors. Thus, a
Board of Pardons—consisting of the Governor, Attorney
General, and Secretary of State—was created. After being
amended and transferred to art. IV, § 13, the conditions
clause stated:
      Said board, or a majority thereof, shall have power to
      remit fines and forfeitures and to grant commutations,
      pardons and paroles after conviction and judgment, under
      such conditions as may be prescribed by law, for any
      offenses committed against the criminal laws of this state
      except treason and cases of impeachment.
   The conditions clause was last amended following voter
approval in 1968.36 That amendment required the Legislature
to create a law establishing the Board and the qualifications
of its members. As we have already stated, this version of the
conditions clause gave the Board the “power to grant paroles
after conviction and judgment, under such conditions as may
be prescribed by law, for any offenses committed against
the criminal laws of this state except treason and cases of
impeachment.” A parole statute in effect at that time stated
in part that “[n]o such parole shall be granted in any case

34	
      Id.
35	
      Id.
36	
      See 1967 Neb. Laws, ch. 319, §§ 1 through 3, pp. 852-53.
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                                ADAMS v. STATE
                               Cite as 293 Neb. 612

unless the minimum term fixed by law for the offense has
expired . . . .”37
   As early as 1893, there was a law conditioning parole eligi-
bility on the serving of a minimum term. And the two constitu-
tional provisions which expressly referred to parole authorized
paroles to be granted “under such conditions as may be pre-
scribed by law.” A law governing parole eligibility—such as
§ 83-1,110—is such a condition prescribed by law.
   We must resolve all reasonable doubts in favor of the con-
stitutionality of § 83-1,110. Having done so, we conclude that
Adams has failed to meet his burden of clearly establishing
that the statute is unconstitutional.
                          CONCLUSION
   Under the conditions clause, the Board has the power to grant
paroles for any offenses except treason and cases of impeach-
ment, subject to conditions established by the Legislature.
Section 83-1,110(1) imposes such a “condition,” making an
offender serving a life sentence ineligible for parole consider-
ation until the sentence is commuted. We conclude the statute
does not infringe on the Board’s authority to grant paroles for
any offenses. We affirm the decision of the district court dis-
missing Adams’ complaint.
                                                     A ffirmed.
   Stacy, J., not participating.

37	
      Neb. Rev. Stat. § 29-2623 (Reissue 1964).
