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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.
                             - 139 -
           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.
                             - 140 -
           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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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                      SANDOVAL v. RICKETTS
                        Cite as 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.
