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Greg Stewart et al., appellees, v. Dave Heineman, 

in his official capacity as Governor of

Nebraska, et al., appellants.

___ N.W.2d ___

Filed April 7, 2017. No. S-16-018.

1. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment was granted, and 

gives that party the benefit of all reasonable inferences deducible from 

the evidence.

2. Attorney Fees: Appeal and Error. When attorney fees are authorized, 

the trial court exercises its discretion in setting the amount of the fee, 

which ruling an appellate court will not disturb on appeal unless the 

court abused its discretion.

3. Summary Judgment. In the summary judgment context, a fact is material only if it would affect the outcome of the case.

4. Justiciable Issues. A justiciable issue requires a present, substantial 

controversy between parties having adverse legal interests susceptible to 

immediate resolution and capable of present judicial enforcement.

5. Courts: Justiciable Issues. A court decides real controversies and 

determines rights actually controverted, and does not address or dispose 

of abstract questions or issues that might arise in a hypothetical or fictitious situation or setting.

6. Justiciable Issues: Standing. Standing is a key function in determining 

whether a justiciable controversy exists.

7. Standing: Jurisdiction. Standing requires that a litigant have such a 

personal stake in the outcome of a controversy as to warrant invocation 

of a court’s jurisdiction and justify the exercise of the court’s remedial 

powers on the litigant’s behalf.

8. Actions: Justiciable Issues: Standing. The ripeness doctrine is rooted 

in the same general policies of justiciability as standing and mootness. 

As compared to standing, ripeness assumes that an asserted injury is 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/07/2017 09:08 AM CDT
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sufficient to support standing, but asks whether the injury is too contingent or remote to support present adjudication.

9. Actions: Jurisdiction. An appellate court uses a two-part inquiry to 

determine ripeness: (1) the jurisdictional question of the fitness of the 

issues for judicial decision and (2) the prudential question concerning 

the hardship to the parties of withholding court consideration.

10. Declaratory Judgments. The function of a declaratory judgment is 

to determine justiciable controversies which either are not yet ripe for 

adjudication by conventional forms of remedy or, for other reasons, are 

not conveniently amenable to the usual remedies.

11. Equal Protection: Discrimination. The injury in an equal protection 

case is the imposition of a barrier that makes it more difficult for members of one group to obtain a benefit, rather than the ultimate inability to 

obtain the benefit.

12. Discrimination. When the government erects a barrier that makes it 

more difficult for members of one group to obtain a benefit than it is 

for members of another group, a member of the former group seeking 

to challenge the barrier need only demonstrate that he or she is ready 

and able to perform and that a discriminatory policy prevents him or her 

from doing so on an equal basis.

13. Discrimination: Standing. For those persons who are personally subject to discriminatory treatment, stigmatizing injury caused by discrimination is a serious noneconomic injury that is sufficient to support standing.

14. Standing. Standing does not require exercises in futility.

15. Actions: Moot Question. An action becomes moot when the issues 

initially presented in the proceedings no longer exist or the parties lack 

a legally cognizable interest in the outcome of the action.

16. Discrimination: Declaratory Judgments: Injunction: Proof. If a discriminatory policy is openly declared, then it is unnecessary for a 

plaintiff to demonstrate it is followed in order to obtain injunctive or 

declaratory relief.

17. Actions: Moot Question. A defendant cannot automatically moot a case 

simply by ending its unlawful conduct once sued.

18. Actions: Moot Question: Proof. A defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing 

that it is absolutely clear the allegedly wrongful behavior could not 

reasonably be expected to recur.

19. Appeal and Error. A court’s consideration of a cause on appeal is limited to errors assigned and discussed.

20. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision awarding or denying attorney fees will be upheld absent an abuse 

of discretion.
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Appeal from the District Court for Lancaster County: John

A. Colborn, Judge. Affirmed.

Douglas J. Peterson, Attorney General, James D. Smith, 

Ryan S. Post, and Jessica M. Forch for appellants.

Amy A. Miller, of ACLU Nebraska Foundation, Inc., Leslie 

Cooper, of ACLU Foundation, Inc., and Garrard R. Beeney 

and W. Rudolph Kleysteuber, of Sullivan & Cromwell, L.L.P., 

for appellees.

Robert McEwen and Sarah Helvey, of Nebraska Appleseed 

Center for Law in the Public Interest, for amicus curiae 

Nebraska Appleseed Center for Law in the Public Interest.

Daniel S. Volchok and Kevin M. Lamb, of Wilmer, Cutler, 

Pickering, Hale & Dorr, L.L.P., and Robert F. Bartle, of Bartle 

& Geier Law Firm, for amici curiae Child Welfare League of 

America et al.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Wright, J.

I. NATURE OF CASE

The plaintiffs, three same-sex couples, sought, pursuant 

to 42 U.S.C. § 1983 (2012), to enjoin the defendants, Dave 

Heineman, the former Governor of the State of Nebraska; 

Kerry Winterer, in his official capacity as the chief executive officer of the Department of Health and Human Services 

(DHHS); and Thomas Pristow, in his official capacity as the 

director of the Division of Children and Family Services, 

from enforcing a 1995 administrative memorandum and from 

restricting gay and lesbian individuals and couples from being 

considered or selected as foster or adoptive parents. The court 

ordered the memorandum rescinded and stricken and enjoined 

the defendants and those acting in concert with them from 

enforcing the memorandum and/or applying a categorical ban 
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to gay and lesbian individuals and couples seeking to be 

licensed as foster care parents or to adopt a state ward. The 

court further ordered the defendants and those acting in concert to “refrain from adopting or applying policies, procedures, 

or review processes that treat gay and lesbian individuals and 

couples differently from similarly situated heterosexual individuals and couples when evaluating foster care or adoption 

applicants under the ‘best interests of the child’ standard set 

forth in DHHS’ regulations.” The court awarded the plaintiffs 

costs and attorney fees.

The defendants appeal. They do not assert that it is constitutional to discriminate on the basis of sexual orientation in the 

licensing or placement of state wards in foster care. Instead, 

the defendants argue that the plaintiffs lack standing because 

they have not yet applied for and been rejected in obtaining 

a foster care license or in having a state ward placed in their 

homes. Alternatively, the defendants argue that there was no 

case and controversy, because the memorandum that was the 

focus of the plaintiffs’ complaint ceased to be the policy of 

DHHS by the time this lawsuit was filed, despite the fact that 

the memorandum was never rescinded and it remained on the 

DHHS website. Finally, the defendants claim that the plaintiffs’ lawsuit became moot when the policy memorandum was 

removed from the DHHS website 3 weeks after the plaintiffs’ 

motion for summary judgment was filed.

II. BACKGROUND

1. Complaint

The complaint, filed on August 27, 2013, centered on an 

administrative memorandum (Memo 1-95) issued in 1995 by 

the then Department of Social Services, which subsequently 

became DHHS in 1996. Memo 1-95 was written by the director 

of the department and states in relevant part:

It is my decision that effective immediately, it is the 

policy of the Department of Social Services that children 

will not be placed in the homes of persons who identify 
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themselves as homosexuals. This policy also applies to 

the area of foster home licensure in that, effective immediately, no foster home license shall be issued to persons 

who identify themselves as homosexuals.

A similar policy was set forth in Memo 1-95 regarding 

unmarried heterosexual couples. An addendum to Memo 1-95 

directed staff not to specifically ask about an individual’s 

sexual orientation or marital status beyond those inquiries 

already included in the licensing application and home study. 

The stated reason for the policy was this State’s intent to 

place children in the most “family-like setting” when out-ofhome care is necessary. Though Memo 1-95 and the addendum stated that staff would be drafting a proposed program 

and licensing regulation to be brought before a public hearing in a more formal manner, such proceedings apparently 

never occurred.

The plaintiffs’ complaint alleged that Memo 1-95 was still “in 

effect” as of April 1, 2013. It was not disputed by the defendants that Memo 1-95 had not been “rescinded or replaced.”

The complaint alleged that Memo 1-95 set forth a policy 

prohibiting the Department of Social Services, now DHHS, 

from issuing foster home licenses to or placing foster children with persons who identify themselves as homosexuals 

or unrelated, unmarried adults living together. The plaintiffs 

alleged that this policy also effectively banned homosexuals 

from adopting children from state custody, because individuals 

may adopt children from state care only if they have first been 

licensed as foster parents.

The plaintiffs consist of three homosexual couples who 

alleged in the complaint that they are able and ready to apply 

to be foster parents and would do so but for the policy stated 

in Memo 1-95.

One couple, Greg Stewart and Stillman Stewart, further 

alleged that they were married in 2008 in California. They 

alleged they had contacted DHHS in October 2012 to inquire 

about obtaining a foster home license. Greg and Stillman 
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alleged they were told by a DHHS representative that they 

could not obtain a license because same-sex couples are barred 

from becoming licensed under DHHS policy.

Another couple, Todd Vesely (Todd) and Joel Busch (Joel), 

alleged that they “began the process of applying” to become 

foster parents in July 2008. They completed training, a home 

study, and submitted to background checks. But, in 2010, 

Todd Reckling, the director of DHHS’ Division of Children 

and Family Services at that time, informed Todd and Joel that 

it was DHHS’ policy to bar licensing unrelated adults living 

together. In their answer, the defendants admitted that Reckling 

informed this couple of Memo 1-95.

The plaintiffs generally alleged that the policy expressed in 

Memo 1-95 violated equal protection and due process under 

the state and federal Constitutions and violated 42 U.S.C. 

§ 1983 of the Civil Rights Act. They alleged that prospective 

foster and adoptive parents were being subjected to differential treatment on the basis of their sexual orientation, and they 

asserted that sexual orientation constituted a suspect class. The 

plaintiffs asserted that there was no compelling interest, or 

even a rational basis, justifying such disparate treatment. The 

plaintiffs asserted that the policy found in Memo 1-95 impermissibly burdened their personal liberty and privacy rights to 

enter into and maintain intimate personal relationships within 

their own homes.

The plaintiffs asserted that they had no adequate remedy at 

law to redress these wrongs, which were of a continuing nature 

and would cause irreparable harm. They prayed for a declaration that the policy stated in Memo 1-95 is unconstitutional, 

void, and unenforceable, and an order enjoining the defendants 

from enforcing Memo 1-95.

In addition, the plaintiffs asked for an order “directing 

Defendants to evaluate applications of gay and lesbian individuals and couples seeking to serve as foster or adoptive parents 

consistently with the evaluation process applied to applicants 

that are not categorically excluded.”
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Finally, the plaintiffs asked for attorney fees and further 

relief as the court deemed proper.

The defendants alleged as affirmative defenses that the 

plaintiffs had failed to state a cause of action and that the 

defendants had not violated any of the plaintiffs’ constitutional, 

civil, or statutory rights. The defendants did not affirmatively 

allege that Memo 1-95 was no longer in effect or enforced.

2. Motions Below

The defendants moved to dismiss on the grounds that on the 

face of the complaint, the plaintiffs lacked standing and stated 

no claim upon which relief could be granted. The court overruled the motion to dismiss.

On the issue of standing, the court relied upon Gratz v. 

Bollinger1 for the proposition that the injury in fact in an equal 

protection case is the denial of equal treatment resulting from 

the imposition of a barrier, not the ultimate inability to obtain 

the benefit. Under Gratz, the plaintiffs need only show they are 

“‘able and ready’” to apply for a benefit should the discriminatory policy that prevents them from doing so be removed.2

The court concluded that because the plaintiffs alleged they 

were able and ready to apply for foster care licenses, their 

complaint sufficiently alleged standing.

On the issue of failure to state a claim, the court first 

observed that nothing in Nebraska law sets forth a policy prohibiting homosexuals or unmarried couples from fostering or 

adopting.3 It then concluded that the allegations of disparate 

treatment were sufficient to state causes of action under equal 

protection and due process.

On December 11, 2014, the defendants moved for summary judgment. On January 27, 2015, the plaintiffs filed 

1 Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 

(2003).

2 See id., 539 U.S. at 262.

3 See Neb. Rev. Stat. §§ 43-101, 43-107, and 43-109 (Reissue 2016).
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a cross-motion for summary judgment. On October 16, the 

plaintiffs moved for attorney fees. The court’s orders on these 

motions are the subject of the current appeal.

3. Evidence at Summary

Judgment Hearing

In support of their motion for summary judgment, the 

plaintiffs submitted affidavits in which they generally confirmed the truth of their factual allegations made in the complaint. The plaintiffs expressed their desire to serve as foster 

parents and “be subject to the same approval process that is 

applied to heterosexuals and not be subject to any discriminatory approval process based on our sexual orientation.” 

Greg and Stillman clarified they no longer live in Nebraska, 

but that they still wish to adopt a Nebraska child out of foster care. Numerous exhibits, including the transcripts of the 

depositions of several DHHS employees, were also entered 

into evidence.

(a) Todd Reckling

Reckling was the director of the Division of Children and 

Family Services of DHHS when Todd and Joel were communicating with DHHS about the then almost 2-year delay in 

making any licensing or placement decision since Todd and 

Joel had completed all the necessary training and background 

checks. A letter written in June 2010, by Reckling to Todd and 

Joel, was entered into evidence.

Reckling wrote to Todd and Joel that DHHS policy “allows 

for an exception” which would have to be made in order for 

either one of them to foster a child, given that they are two 

unmarried individuals living together. Reckling gave no indication that such an exception would be made in their case. Even 

if such an exception were made, Reckling explained, a child 

could not be placed jointly with or adopted jointly by Todd 

and Joel. Reckling explained that “‘second parent adoptions’” 

were not permitted by a second person who is not married to 

the first and that Todd and Joel could not marry, because the 
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Nebraska Constitution states that only marriage between a man 

and a woman shall be recognized in Nebraska.

(b) Kerry Winterer

Todd and Joel were subsequently in contact with Winterer, 

who has been the chief executive officer of DHHS since July 

2009. Winterer sent a letter to Todd and Joel’s attorney in 

November 2011, which was also entered into evidence. By 

that time, Todd and Joel had waited over 3 years to foster a 

child. In the letter, Winterer repeatedly cited to Memo 1-95. 

Winterer explicitly stated that “Policy Memorandum # 1-95 is 

still in force.”

But in his deposition taken in July 2014, Winterer deferred 

to Pristow, the director of the Division of Children and Family 

Services for DHHS at that time, regarding the precise details 

of the then-current policy and the reasons for it. He noted that 

Pristow’s practice permitted placement with homosexual applicants as long as their placement was approved by Pristow in 

his capacity as director.

Winterer testified that he could imagine no reason for this 

extra layer of review and approval except to ensure there was 

no bias against persons who identify themselves as homosexual. However, he also noted that because the Nebraska 

Constitution does not recognize marriage between two persons 

of the same gender, homosexual couples who have married in 

another state would be considered as cohabitating, unrelated 

adults. Winterer then elaborated that there are “stability” concerns in placing children with cohabitating, unrelated adults. 

Winterer stated that the current regulations do not allow for 

both adults in a cohabitating, unmarried relationship to hold 

a joint license and that there can only be one license issued 

per address.

Winterer testified he did not believe identifying as homosexual was relevant to that person’s qualification as a foster 

or adoptive parent, but that he could envision sexual orientation being a factor in the best interests analysis, in the event 
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it could cause a problem with the relationship between the 

biological parent and the foster parent.

Winterer stated that Memo 1-95 was “modified by practice 

and . . . the policy of the current director.” Winterer thought 

that Memo 1-95 was still used in DHHS training materials. Nevertheless, he believed new employees were “informed 

about what the current practice is and the current process in 

terms of dealing with applicants.” He was “assuming that [the 

new practice] has been communicated to [the caseworkers 

and supervisors in the service areas] through one means or 

another.” He testified that there was no documentation of any 

new policy or practice.

With regard to the failure to formally rescind Memo 1-95, 

Winterer said, “I think our attitude would be it’s probably 

unnecessary because policy evolves and is the expression of 

practice and policy of the director, who is in charge of making policy for the division under which this falls.” He also 

thought it was “probably unnecessary” to rescind Memo 1-95, 

which “goes back 20 years and was issued by a director of a[n] 

agency that no longer exists.” He did not specifically discuss 

any possible distinction between “policy” and “practice.”

Finally, Winterer explained that there “may be, shall we 

say, some . . . implications” in formally rescinding Memo 

1-95. Winterer stated that rescinding Memo 1-95 “could 

draw attention on the part of certain individuals in the state 

of Nebraska to . . . the issue of gay marriage and some other 

. . . sensitive issues” and that it could increase scrutiny and 

“complicate our going about doing our business.” He elaborated that he was concerned formal rescission of Memo 1-95 

could result in elected officials taking actions that would 

make it difficult for DHHS to place children with homosexual applicants.

(c) Thomas Pristow

In March 2012, Pristow took over Reckling’s position of 

director of the Division of Children and Family Services for 
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DHHS, and remained in that position at the time his deposition was taken in September 2014. In his deposition, Pristow 

indicated that it was his “understanding” that the same licensing restrictions existed for single, cohabitating, unmarried, 

married, heterosexual, or homosexual applicants, even before 

he adopted any policies or procedures with regard to homosexual applicants. He was speaking in terms of a single license, 

however, and not the ability to obtain a joint license. An email 

from 2012 indicates that legal advisors before Pristow’s tenure 

had opined that Memo 1-95 could not be enforced as to licensing, because the regulations concerning licensing are silent on 

the sexual orientation of the applicant.

But licensing is different than placement. While a child 

generally cannot be placed in a nonlicensed home, having 

a person licensed in a home does not mean a child will be 

placed there.

Sometime in the summer of 2012, Pristow verbally instructed 

his service area administrators and his deputy director that 

homosexual applicants could be considered for foster or adoptive placements. Pristow did not specifically address whether 

this was a change in “policy” versus a change in “practice,” 

though most of the questions and answers referred to “policy.”

Pristow’s placement protocol, hereinafter referred to as the 

“Pristow Procedure,” set forth different procedures for homosexual applicants than for heterosexual applicants. When a 

caseworker recommends a placement in the home of a married, heterosexual couple, that placement is effective if the 

caseworker’s supervisor agrees with the recommendation. 

But, under the Pristow Procedure, as described by Pristow, 

if the caseworker recommends a placement in the home of a 

homosexual couple or individual, then the placement recommendation can only take effect after being approved by the 

caseworker’s supervisor, the service area administrator, and, 

finally, Pristow himself. Other DHHS employees clarified that 

as to homosexual applicants under the Pristow Procedure there 

are actually five layers of placement review: the caseworker, 
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the caseworker’s supervisor, the administrator, the service area 

administrator, and then the director (Pristow).

According to Pristow, the protocol for an unmarried heterosexual adult living with another adult—or for a married, heterosexual felon—would require only three levels of approval: 

the caseworker’s, the caseworker’s supervisor, and the service 

area administrator’s approval to effect the placement recommendation. Other DHHS employees clarified that this would be 

four levels of approval, as it would include the administrator. 

Such applicants would not require Pristow’s approval.

Pristow explained that there was no category of applicants, other than homosexuals, that required Pristow’s personal 

approval before a caseworker’s placement recommendation 

could be implemented. And Pristow clarified that he did not 

review denials of placement with homosexual applicants. He 

only reviewed recommendations for placement.

Pristow testified that there was no reason, with respect to 

child welfare, that a person who identifies as homosexual, or 

that unmarried persons living together, should be treated differently than heterosexual, married persons in the licensing or 

placement of a child in a foster or adoptive home. He said that 

in his 20 years of experience in children and family services, 

“gay and lesbian foster parents do just as good on — if not better than regular foster parents, everything being equal.” Pristow 

agreed that there was a consensus in the scientific literature 

that the outcome for children was not adversely affected by 

being raised by homosexual persons, and he said that he had no 

reason to doubt that consensus.

Pristow explained that Nebraska was a conservative state 

with a constitutional amendment banning gay marriage. He 

“take[s] that into account when [he] make[s] these type[s] 

of placements.” When asked how he takes that into account, 

Pristow explained, “I make it my decision and not the field’s.”

Pristow explained that when reviewing placement recommendations with homosexual applicants, he did not consider 

the sexual orientation of the recommended foster or adoptive 
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parent in making his decision. The applicant’s sexual orientation was only relevant insofar as it was the triggering factor of 

the extra layer of review.

But Pristow also indicated that Nebraska’s laws and the 

constitutional amendment regarding homosexual couples were 

somehow taken into account in his decisonmaking:

I do work for the State, and I am supportive of its laws 

and its amendments to the constitution. And I take that in 

balance when I, you know, make those type[s] of decisions about placing children in gay and lesbian foster 

homes. . . .

. . . .

. . . [T]his is a conservative state, and I’m cognizant 

of that, and I want to make sure that I — that my process 

is — has foundation, and that, again, it reflects what the 

best interest of that child is . . . .

Pristow, however, denied that he took a “harder look” at 

placements with homosexual applicants. And he stated that 

he had no reason to doubt the competency of caseworkers 

and their supervisors in making best interests decisions. He 

explained that it is just “a process so that I can take on the 

responsibility of making that decision from the field so that 

these placements can be made in accordance with the best 

interests of the child.”

Pristow acknowledged that, as of the time of the deposition in September 2014, Memo 1-95 was still on DHHS’ 

website and that there was nothing in writing on the website 

or elsewhere disavowing the policies stated in Memo 1-95. 

To the contrary, it was his understanding that Memo 1-95 was 

included in the packet of administrative memorandums that 

was given to new trainees as they enter into the system.

Neither was there anything in writing, to his knowledge, 

reflecting the Pristow Procedure. But Pristow said that, as new 

trainees go out into the field, they are supposed to be told of 

it. Pristow was unsure exactly how thoroughly this was done. 

He explained:
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As the new trainee goes out to the field, either through 

a mentoring protocol that we have or through [his or her] 

new supervisor, there is — they are — they begin to learn 

the practice of how we do child welfare in Nebraska. And 

as this would come up or when it does come up, they are 

told of the protocol that I put — the policy that I put in 

place verbally.

. . . .

. . . I can’t speak to whether [a caseworker, when 

approached for the first time by a homosexual applicant] 

would know [Memo 1-95 is no longer the current practice]. My instructions were to the service area administrators when I gave my verbal policy out, and my direction 

was to make sure that it was disseminated throughout 

the field.

Pristow agreed that there “might be some confusion” for new 

employees as to whether Memo 1-95 is still DHHS’ policy and 

practice, but he believed “the field is very competent, very 

competent in making sure that information is disseminated and 

that we look out for the best interests of the child and we find 

the best possible placement for that child regardless of gender 

— or of orientation.”

Pristow acknowledged that four new service area administrators had been hired or promoted into that position since the 

summer of 2012 and that he did not have a specific discussion with those new service area administrators regarding his 

verbal policy. Pristow said, “The general intent and theme of 

what I wanted to have happen, though, I’m sure was conveyed 

through the deputy and in some manner or form as we went 

through the years.”

Pristow testified that it was within his authority to send out 

a notification to all staff stating that Memo 1-95 no longer 

represents DHHS policy. He had chosen not to do so. Pristow 

testified that Memo 1-95 was “still on the website and it’s still 

in play.” He explained “it hasn’t been rescinded except through 

verbal instructions by me to my service area administrators.” 
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There was “nothing on the website that would indicate [Memo 

1-95 is] no longer policy.”

Pristow agreed that a prospective applicant could look at the 

website and be discouraged by Memo 1-95 from applying to 

be a foster or adoptive parent. Pristow testified that he deliberately determined to keep Memo 1-95 on the website and in 

DHHS’ training materials, and to have the Pristow Procedure 

be verbal only. Pristow could think of no instance other than 

Memo 1-95 wherein DHHS has had an administrative memorandum on its website setting forth a policy that is not, in actuality, DHHS’ policy and practice.

(d) Other DHHS Employees

The depositions of two deputy directors at DHHS, a policy 

administrator, a field operations administrator, and five service area administrators were also entered into evidence for 

purposes of the summary judgment motions. At the time the 

depositions were taken, in October and November 2014, Memo 

1-95 was still on the DHHS website. Tony Green, a deputy 

director at DHHS, testified that it is DHHS’ general practice to update memorandums as needed and that, typically, a 

memorandum that no longer represents DHHS policy would be 

removed from the website. The decision to remove or keep a 

memorandum from the website would be made by the director 

and the chief executive officer.

No other employee opined with any certainty as to the standard procedure for memorandums that cease to represent DHHS’ 

policy or procedure. However, a copy of a DHHS web page 

listed, under the broad category of “Archived Administrative 

& Policy Memos,” the subcategories of “Rescinded Memos” 

and “Rescinded and Replaced Memos.” Memo 1-95 was not 

listed under either of those categories. The web page set forth 

that it was last updated on February 6, 2015.

None of the employees deposed were aware of anything in 

writing on the website or elsewhere, informing staff and potential applicants that Memo 1-95 no longer represented DHHS’ 
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policy or its practice. Neither were any of the employees aware 

of anything in writing contradicting Memo 1-95 by expressly 

stating that homosexuals were permitted to serve as foster or 

adoptive parents.

The employees described Memo 1-95 as still the current 

“policy,” but stated that it did not represent the current “practice.” According to these employees, Memo 1-95 had not been 

“rescinded” or “modified” by the director, thus it was still 

“in effect,” or “active.” They all agreed it was not followed, 

however. The witnesses were unaware of any other instance 

where DHHS practice was in conflict with an existing policy memorandum.

A field operations administrator for DHHS described the 

Pristow Procedure as “granting an exception on [an] existing 

memo.” And a document was entered into evidence that had 

been created in August 2014 by Nathan Busch, a DHHS policy 

administrator, listing the “Placement Exceptions by Director” 

from July 2013 to August 2014. Numerous such exceptions 

listed the “Type of Exception” as “Same-Sex Couple.”

The DHHS employees uniformly described the current practice as having five layers of approval for placement of a foster 

child in the home of same-sex couples or individuals who 

identify as homosexual. These layers consist of the original 

recommendation for placement by the caseworker and then 

approval by the caseworker’s supervisor, the administrator, the 

service area administrator, and, finally, the director. The DHHS 

employees testified that felons and unmarried, unrelated adults 

also require extra layers of approval, but only four. Only homosexual applicants required the approval of the director.

According to Kathleen Stolz, a service area administrator, 

Reckling had required director approval of all placements with 

unmarried couples. And Stolz stated that “we no longer needed 

to send for approval for placement in an unmarried, unrelated 

home to the director unless there was a self-disclosure that 

they were in a same-sex relationship or were gay or lesbian.” 

The employees believed that under the Pristow Procedure, 
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sexual orientation was not to be taken into account in a best 

interests analysis.

The employees testified that during training, new DHHS 

hires are no longer given a physical copy of Memo 1-95, or 

of any of the policy memorandums. Instead, trainees are notified of where to locate the administrative memorandums on 

the website. There was no indication during new employees’ 

classroom training that Memo 1-95 is no longer to be followed.

The employees explained that the Pristow Procedure is 

instead discussed in the field during mentoring of new caseworkers, as well as through “word-of-mouth” within the service areas. DHHS also holds monthly meetings of service area 

administrators, and one or two caseworkers or supervisors from 

each service area attend those meetings. The Pristow Procedure 

is discussed at these meetings whenever there are new service 

area administrators.

One DHHS deputy director explained that dissemination of 

the Pristow Procedure is always verbal, “[b]ecause we have a 

current policy on the — on the issue.”

A service area administrator testified that when asked about 

the status of Memo 1-95 by DHHS staff, she responds that it is 

on the website; it is “still an administrative memo, and it’s still 

in effect.” She does not explain the Pristow Procedure unless 

specifically asked about it.

None of the employees deposed could state with certainty 

that all DHHS employees were aware of the Pristow Procedure. 

However, none were specifically aware of any current confusion as to the Pristow Procedure within DHHS.

As to dissemination of the current practice to the approximately 40 agencies that DHHS contracts with to provide foster 

care services, the DHHS employees explained that there are 

regular meetings with such agencies. There was testimony 

that the Pristow Procedure was discussed in at least one of 

those meetings.

But, again, the employees were uncertain whether every 

contractor knew of the Pristow Procedure. One service area 
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administrator believed there was still confusion within outside 

contracting agencies about DHHS policy and practice as concerns placement with homosexual applicants.

The employees agreed that there is a need for more foster 

parents and that there are no child welfare interests served by 

excluding homosexual applicants or by requiring extra layers 

of approval for placements with homosexual licensees. The 

employees conceded that Memo 1-95 could deter prospective 

homosexual foster and adoptive parents from pursuing foster 

care or adoption.

According to the DHHS employees, the approval was generally described as strengthening the placement decision as 

being in the best interests of the children placed within homes 

of homosexual foster parents—in the event that a particular 

placement became an “issue.” Busch was unsure exactly what 

the reason was, but believed Pristow was “referring to the fact 

that there is a written policy in place that he does not support 

the practice of.”

(e) Internal Communications

Internal email correspondence from June 28, 2012, to June 

4, 2013, was also offered by the plaintiffs and admitted into 

evidence in support of their motion for summary judgment. 

The emails were submitted as evidence of the lack of dissemination and clarity surrounding the Pristow Procedure and the 

continuing validity of Memo 1-95.

In an email dated June 29, 2012, a DHHS employee 

expressed that he and any contractor needed to follow Memo 

1-95 until that policy is changed. And in correspondence with 

a contracting agency, he explained that the likelihood of placement with a same-sex couple was “small as the adults in that 

home would need to be the best possible placement for a specific child and [the Division of Children and Family Services] 

would need to take the request to make the placement all the 

way to Central Office and get [its] agreement.”

In various other emails in the months following the 

announcement of the Pristow Procedure, employees appeared 
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to be aware of the Pristow Procedure, but asked for clarification on the details. In July 2012, Marylyn Christenson, a 

DHHS resource development supervisor, expressed confusion, 

in light of Memo 1-95, about whether homosexual applicants 

could be licensed. This communication took place because a 

contracting agency was also confused. Still, Christenson stated 

that she knew placement approval for a homosexual applicant 

would have to be from the director. She opined that “we would 

need to tell these [homosexual individuals interested in fostering] that [any placement will require director approval] so they 

know before they go to the trouble to get [licensed].”

In September 2012, a different contracting agency asked 

for clarification as to whether same-sex couples could foster, 

given that the “memo from the 90’s seems to be in [e]ffect.” 

Pristow personally responded to this email, explaining that 

DHHS’ legal department advised that DHHS cannot deny a 

license to applicants who meet the regulations, which do not 

touch upon sexual orientation. But Pristow also explained 

that licensing “does not guarantee placement as the placement would need my prior approval before the placement 

could occur.”

In October 2012, the employee of yet another contracting agency still believed that neither party of a same-sex 

couple could be licensed to foster. A DHHS employee told 

that employee that one member of the same-sex couple could 

be licensed, but the DHHS employee was unable to answer 

the agency’s questions regarding what factors were involved 

in the placement decision for a licensed member of a samesex couple.

In November 2012, Christenson expressed in an email her 

belief that Memo 1-95 was “still in force since it’s on the 

website.” Stolz responded that she thought Memo 1-95 had 

been removed from the website, but that she would follow up. 

Christenson responded that she “didn’t know an Admin memo 

could be removed, w/out a replacement, or notice. It’s been 

confusing to follow how they are handling that memo.”
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When, after discussion with Stolz, the resource developer 

administrator emailed Christenson that they would be going 

ahead with licensing one of the applicants who is in a samesex relationship, Christenson stated that “no one has clearly 

explained to me how we can license a home when [Memo 

1-95] is still in effect.” Further emails between Christenson and 

other employees discussed being unwilling to license homosexual applicants, apparently despite communications from their 

supervisors to do so. An email to Christenson from a DHHS 

resource developer explained that she was “not comfortable 

going against policy” and that others should know that Memo 

1-95 “which clarifies the policy has not been rescinded so . . . 

it is basically against policy [to license homosexual applicants] 

at this point.”

In November 2012, Busch stated to the service area administrators that he had been receiving some inquiries about the 

status of Memo 1-95. He clarified that Memo 1-95 was “still 

active and has not been rescinded. An exception to [Memo 

1-95] must be granted by Director Pristow.”

There was testimony that up until approximately September 

2014, Christenson and other staff were placing “holds” on 

all licensed homes where homosexuals or unmarried couples 

resided. When a home is on hold, no placements can be made 

in the home until the hold is lifted. These holds were apparently meant to “trigger the staff to know that they needed to 

have either service area or director approval prior to the placement to ensure that we were following current practice.” After 

Stolz became aware of the practice of putting these homes on 

hold, it ceased.

(f) Answers to Interrogatories

In the defendants’ answers to interrogatories, they described 

that it was DHHS’ “policy” to allow only one license per 

address and to allow a joint license only for married couples.

With regard to placements of wards when the foster parent 

is unmarried and there are other adults living in the home, the 

defendants explained:
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[P]lacement of wards when the foster parent is unmarried 

and there are other adults living in the home if:

• The ward is related to the foster parent by blood or

adoption

• The ward is a former foster child of the foster parent

• The foster parent is the legal guardian of the ward, or

• The foster parent is responsible to provide physical care

to and supervision of the ward, whose placement is 

supervised by a developmental disability agency.

If none of the above criteria are met, DHHS policy also 

allows for an exception if the local office believes that 

placement in the home would be appropriate and in the 

best interest of the child. If the foster parent has identified 

as gay or lesbian, the Service Area Administrator would 

then make a request for approval to the Director of the 

Division of Children and Family Services. The Director 

would then make a decision on whether placement in the 

home would be appropriate and in the best interest of 

the child. If the placement is approved, the ward will be 

placed with the licensed or approved individual.

(Emphasis supplied.) The defendants did not address whether 

it would recognize same-sex couples as married if they were 

married in another state.

In a response to an interrogatory asking how DHHS would 

determine an applicant’s sexual orientation, the defendants 

relied on Memo 1-95 to point out its policy not “‘to ask any 

specific questions about an individual’s sexual orientation or 

marital status than is currently asked in the licensing application, home study, etc.’” The defendants stated that training 

instructors do not distribute any administrative memorandums 

during orientation training, but are “expected to review policies on their own.”

(g) Memo 1-95 Removed 

From Website

The defendants submitted the affidavit of Green, the acting director of the Division of Children and Family Services. 
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Green obtained that position on January 8, 2015. Green averred 

that Memo 1-95 was removed from the DHHS website on 

February 20, 2015, approximately 4 weeks after the defendants 

filed their motion for summary judgment and 3 weeks after 

the plaintiffs filed their cross-motion for summary judgment. 

Green did not state that Memo 1-95 had been rescinded. Nor 

did Green address whether homosexual applicants were still 

subject to a five-tier approval process for placement.

4. Arguments Made Below

At the hearing on the motions for summary judgment, the 

plaintiffs argued that DHHS discriminated on the basis of sexual orientation. The plaintiffs argued that it did so both by virtue 

of Memo 1-95 and through DHHS’ five-tier Pristow Procedure. 

The defendants did not object to the Pristow Procedure as 

being outside the scope of the pleadings.

The plaintiffs pointed out that Memo 1-95 has not been 

rescinded and is used in new employee training; some DHHS 

employees and private contracting agencies continue to implement it. The plaintiffs pointed out that Memo 1-95 was removed 

from the website only 2 months before the summary judgment 

hearing and that it was still not listed on the web page for 

rescinded policies. The plaintiffs pointed out that the defendants have not given an official announcement that they treat 

heterosexual and homosexual applicants the same.

The plaintiffs asserted that the confusion about whether 

Memo 1-95 still applies discourages homosexual applicants. 

Further, such applicants were “subject to the whims of new 

employees coming in and out, even at the top level, as to 

whether they’re going to apply a policy that’s on the books, or 

whether they’re going to apply their predecessor’s policy, or 

how they’re going to treat gay and lesbian applicants.”

The plaintiffs argued that the Pristow Procedure is itself 

discriminatory, because heterosexual applicants, even felons, 

are subjected to fewer tiers of review than homosexual applicants. Since the extra review is only of approvals and not 

rejections, the extra review cannot be to protect homosexual 
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applicants from discrimination. The plaintiffs pointed out that 

the only possible change in the outcome for the applicant as a 

result of such review is that a homosexual applicant who was 

accepted in an earlier level of review is rejected “further up 

the chain.”

In response to these arguments, the defendants acknowledged that Memo 1-95 had not been rescinded, but claimed 

that rescission was unnecessary. The defendants described 

Memo 1-95 as “nothing”; it was not DHHS’ policy or procedure, was no longer on the DHHS website, and is not 

elsewhere “on the books.” The defendants asserted that the 

plaintiffs’ claims of confusion surrounding Memo 1-95 were 

speculative and, in any event, “confusion does not equal a constitutional violation.”

With regard to the Pristow Procedure, the defendants did not 

deny that the procedure is still in place. But they argued that 

“equal protection does not require absolute equality” and that 

there was no discrimination, because the same best interests 

standard applied to both homosexual and heterosexual applicants. Further, the defendants argued that the extra levels of 

review were not directed at the homosexual applicants, but, 

rather, were a “mechanism for review of the employees and 

what they are doing within their placement determinations” in 

order “to prevent bias by the caseworkers.”

Lastly, the defendants argued that nothing has prevented the 

plaintiffs from applying to be foster parents and that there was 

no remedy for the court to award.

5. District Court’s Order

The court granted summary judgment in favor of the plaintiffs. The court’s original order, dated August 5, 2015, was 

modified on September 16, following the court’s consideration 

of the defendants’ motion to alter or amend the judgment, filed 

August 17. Both the August 5 and the September 16 orders 

described the plaintiffs as making both a constitutional challenge to Memo 1-95 and to the discriminatory process of the 

Pristow Procedure.
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The court rejected the defendants’ arguments that there 

is no longer a case and controversy concerning Memo 1-95 

because it has not represented DHHS policy or practice since 

2012. The court noted that at the time the lawsuit was filed, 

there was confusion within DHHS surrounding Memo 1-95 

insofar as most of the employees deposed believed it to still 

be DHHS “policy.” And the court stated that although the 

Pristow Procedure may be the “current policy,” Memo 1-95 has 

not been formally rescinded or replaced. The court concluded 

that “DHHS cannot have two conflicting policies that reflect 

wholly incompatible interpretations of the same regulations.” 

It found that Memo 1-95 should be stricken in its entirety as in 

violation of equal protection and due process.

The court likewise found that the Pristow Procedure violated 

equal protection and due process. It noted that the defendants 

had failed to identify any legitimate government interest to 

justify treating homosexual individuals and couples differently from heterosexual individuals and couples. Further, the 

defendants had conceded that no child welfare interests are 

advanced by treating homosexual applicants differently from 

heterosexual applicants. It rejected the defendants’ argument 

that the five-tier approval process was to prevent bias against 

homosexual individuals and couples, explaining that “[i]f the 

Defendants wanted to prevent bias against gay and lesbian 

couples, Defendants would review denials of placements rather 

than approvals of placements.”

The court ordered the defendants to “refrain from adopting or applying policies, procedures, or review processes that 

treat gay and lesbian individuals and couples differently from 

similarly situated heterosexual individuals and couples when 

evaluating foster care or adoption applicants under the ‘best 

interests of the child’ standard set forth in DHHS’ regulations.”

Both orders taxed costs of the action to the defendants.

On August 7, 2015, the court granted the plaintiffs an extension of the time to file a motion for attorney fees and costs, 

which was ultimately filed on October 16. The motion for 

attorney fees and costs was filed pursuant to 42 U.S.C. § 1988 
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(2012). The plaintiffs’ attorney filed with the district court 

80 pages of affidavits and attached exhibits in support of the 

motion. Those documents are found in the transcript rather 

than in the bill of exceptions, because they were not offered 

as exhibits during a hearing. But a hearing was conducted in 

which the parties discussed the requested fees and costs. The 

defendants did not object to the documents supporting the 

requested fees on the grounds that they were not properly in 

evidence or otherwise unreliable. The court entered an order on 

December 15 awarding $28,849.25 in costs and $145,111.30 in 

attorney fees.

III. ASSIGNMENTS OF ERROR

The defendants assign that the district court erred by (1) 

receiving hearsay evidence, (2) granting summary judgment 

when there were genuine issues of fact, (3) granting summary 

judgment and issuing an injunction when the plaintiffs did 

not have standing, (4) deciding a case that was moot, and (5) 

awarding attorney fees.

IV. STANDARD OF REVIEW

[1] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment was granted, and gives that party 

the benefit of all reasonable inferences deducible from the 

evidence.4

[2] When attorney fees are authorized, the trial court exercises its discretion in setting the amount of the fee, which 

ruling an appellate court will not disturb on appeal unless the 

court abused its discretion.5

V. ANALYSIS

The defendants do not contest the underlying merits of the 

district court’s determination that Memo 1-95 and the Pristow 

4 Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014).

5 State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016).
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Procedure violate equal protection and due process. Instead, 

the defendants assert there is a material issue of fact whether 

the plaintiffs’ claims were justiciable. The defendants assert 

that if the action was not justiciable, the plaintiffs could not be 

the prevailing parties under 42 U.S.C. § 1988. The defendants 

also claim the award of attorney fees was an abuse of discretion because the evidence of fees was not presented to the district court in the correct manner.

1. Justiciability

[3] We first address whether there was a material issue of 

fact as to the justiciability of the plaintiffs’ claims. Summary 

judgment is proper if the pleadings and admissible evidence 

offered at the hearing show that there is no genuine issue as to 

any material facts or as to the ultimate inferences that may be 

drawn from those facts and that the moving party is entitled to 

judgment as a matter of law.6 In the summary judgment context, a fact is material only if it would affect the outcome of 

the case.7

[4,5] A justiciable issue requires a present, substantial controversy between parties having adverse legal interests susceptible to immediate resolution and capable of present judicial 

enforcement.8 A court decides real controversies and determines rights actually controverted, and does not address or 

dispose of abstract questions or issues that might arise in a 

hypothetical or fictitious situation or setting.9

(a) Ripeness

The defendants’ principle contention is that the plaintiffs 

lack standing because they have not yet applied for and been 

denied foster care licenses and placement of state wards in 

their care. The defendants argue that the plaintiffs thus have 

6 Latzel v. Bartek, supra note 4.

7 Id.

8 In re Estate of Reading, 261 Neb. 897, 626 N.W.2d 595 (2001).

9 US Ecology v. State, 258 Neb. 10, 601 N.W.2d 775 (1999).
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not been harmed. And they argue that if the plaintiffs are 

granted licenses and children are placed in their homes, then 

they never will be harmed. The defendants assert that the 

controversy presented by the plaintiffs’ action is, accordingly, 

purely hypothetical.

[6,7] Standing is a key function in determining whether 

a justiciable controversy exists.10 Standing requires that a 

litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court’s jurisdiction and 

justify the exercise of the court’s remedial powers on the litigant’s behalf.11

But the defendants do not argue that the plaintiffs are asserting merely a general injury to the public. They do not argue 

that if the plaintiffs were to apply for licenses and be denied 

the ability to provide foster care, they would lack a personal 

stake in the outcome of the litigation. The defendants’ standing 

argument is more accurately considered one of ripeness.

[8] The ripeness doctrine is rooted in the same general policies of justiciability as standing and mootness.12 As compared 

to standing, ripeness assumes that an asserted injury is sufficient to support standing, but asks whether the injury is too 

contingent or remote to support present adjudication.13 It is a 

time dimension of standing.14

[9] We use a two-part inquiry to determine ripeness: (1) the 

jurisdictional question of the fitness of the issues for judicial 

decision and (2) the prudential question concerning the hardship to the parties of withholding court consideration.15 We 

follow the Eighth Circuit, which has explained that

10 Hall v. Progress Pig, Inc., 254 Neb. 150, 575 N.W.2d 369 (1998).

11 City of Omaha v. City of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 (2008).

12 13B Charles Alan Wright et al., Federal Practice and Procedure § 3532.1 

(2008).

13 Id.

14 See id.

15 See City of Omaha v. City of Elkhorn, supra note 11.
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“[t]he ‘fitness for judicial decision’ inquiry goes to a 

court’s ability to visit an issue. . . . [I]t safeguards against 

judicial review of hypothetical or speculative disagreements. . . .

“In addition to being fit for judicial resolution, an issue 

must be such that delayed review will result in significant 

harm. ‘Harm’ includes both the traditional concept of 

actual damages—pecuniary or otherwise—and also the 

heightened uncertainty and resulting behavior modification that may result from delayed resolution.”16

Declaratory and injunctive relief, which were sought here, 

require a justiciable controversy that is ripe for judicial determination.17 Such actions cannot be used to obtain advisory 

opinions, adjudicating hypothetical or speculative situations 

that may never come to pass.18

[10] The question of ripeness is to be viewed in light of 

the relief sought. We have said that a “declaratory judgment is by definition forward-looking, for it provides ‘“preemptive justice” designed to relieve a party of uncertainty 

before the wrong has actually been committed or the damage 

suffered.’”19 We have explained that the function of a declaratory judgment is to determine justiciable controversies which 

either are not yet ripe for adjudication by conventional forms 

of remedy or, for other reasons, are not conveniently amenable to the usual remedies.20 The purpose of an injunction, 

16 Id. at 80, 752 N.W.2d at 145-46, quoting Nebraska Public Power Dist. v. 

MidAmerican Energy, 234 F.3d 1032 (2000).

17 See, Ryder Truck Rental v. Rollins, 246 Neb. 250, 518 N.W.2d 124 (1994); 

43A C.J.S. Injunctions § 76 (2014).

18 See, Greater Omaha Realty Co. v. City of Omaha, 258 Neb. 714, 605 

N.W.2d 472 (2000); Ryder Truck Rental v. Rollins, supra note 17. See, 

also, Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8, 

654 N.W.2d 166 (2002).

19 See, Hauserman v. Stadler, 251 Neb. 106, 110, 554 N.W.2d 798, 801 

(1996); Ryder Truck Rental v. Rollins, supra note 17.

20 See id. See, also, e.g., Central City Ed. Assn. v. Merrick Cty. Sch. Dist., 

280 Neb. 27, 783 N.W.2d 600 (2010).
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similarly, is to restrain actions that have not yet been taken.21

Injunctive relief is generally preventative, prohibitory, or 

protective.22

We reject the defendants’ contention that the harm at issue 

in this action is too remote or speculative to be ripe for the 

protective, forward-looking relief sought and obtained by the 

plaintiffs. Fundamentally, the defendants mischaracterize the 

harm the plaintiffs seek to prevent.

The harm the plaintiffs wish to avoid is not just the possible, 

ultimate inability to foster state wards; it is the discriminatory 

stigma and unequal treatment that homosexual foster applicants 

and licensees must suffer if they wish to participate in the foster care system. The imminent injury that the court redressed 

was the plaintiffs’ inability to be treated on equal footing with 

heterosexual applicants.23

[11] We find several U.S. Supreme Court cases instructive on this issue. The U.S. Supreme Court has specifically 

rejected the argument that persons claiming denial of equal 

treatment must demonstrate their ultimate inability to obtain 

a benefit in order for their claims to be justiciable.24 As noted 

by the district court below, the Court has explained that the 

injury in an equal protection case is the imposition of a barrier that makes it more difficult for members of one group to 

obtain a benefit, rather than the ultimate inability to obtain the 

benefit.25 This proposition directly contradicts the defendants’ 

argument that the plaintiffs would suffer no harm unless they 

applied to be foster parents and were ultimately denied placement of state wards in their homes.

21 Putnam v. Fortenberry, 256 Neb. 266, 589 N.W.2d 838 (1999).

22 Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, supra note 18.

23 See Revelis v. Napolitano, 844 F. Supp. 2d 915 (N.D. Ill. 2012).

24 Northeastern Fla. Chapter, Associated Gen. Contractors of America v. 

City of Jacksonville, 508 U.S. 656, 113 S. Ct. 2297, 124 L. Ed. 2d 586 

(1993).

25 See id.
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[12] The U.S. Supreme Court has applied this proposition in 

the context of affirmative action bidding programs and school 

application processes, holding that a plaintiff has standing 

to make a claim challenging the inability to compete on an 

equal footing no matter whether the plaintiff would have been 

admitted to the school or obtained the winning bid but for that 

unequal treatment.26 The Court has held that when the government erects a barrier that makes it more difficult for members 

of one group to obtain a benefit than it is for members of 

another group, a member of the former group seeking to challenge the barrier need only demonstrate that he or she is ready 

and able to perform and that a discriminatory policy prevents 

him or her from doing so on an equal basis.27

In other cases, the Court has elaborated on the stigmatic 

injury that stems from discriminatory treatment. The Court 

has explained that the discriminatory treatment itself is a serious harm that supports standing. In Heckler v. Mathews,

28 for 

example, the Court addressed the plaintiff’s claim that Social 

Security laws subjected him to unequal benefits on the basis of 

gender. The Court found standing, despite the fact that a successful action would result in the plaintiff’s benefits remaining 

the same (while, due to the severability of the discriminatory 

provision, female applicants’ benefits would decrease).29

[13] The Court stated it had “repeatedly emphasized” that

discrimination itself, by perpetuating “archaic and stereotypic notions” or by stigmatizing members of the 

26 See, Northeastern Fla. Chapter, Associated Gen. Contractors of America 

v. City of Jacksonville, supra note 24; University of California Regents v. 

Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978).

27 See Northeastern Fla. Chapter, Associated Gen. Contractors of America v. 

City of Jacksonville, supra note 24.

28 Heckler v. Mathews, 465 U.S. 728, 104 S. Ct. 1387, 79 L. Ed. 2d 646 

(1984). See, also, Barber v. Bryant, 193 F. Supp. 3d 677 (S.D. Miss. 2016); 

Campaign for Southern Equality v. Bryant, 64 F. Supp. 3d 906 (S.D. Miss. 

2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014).

29 Heckler v. Mathews, supra note 28.
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disfavored group as “innately inferior” and therefore as 

less worthy participants in the political community, . . . 

can cause serious noneconomic injuries to those persons 

who are personally denied equal treatment solely because 

of their membership in a disfavored group.30

The Court reiterated that when the right invoked is that of 

equal treatment, the appropriate remedy is a mandate of equal 

treatment.31 Similarly, in Allen v. Wright,

32 the U.S. Supreme 

Court explained that for those persons who are personally subject to discriminatory treatment, stigmatizing injury caused by 

discrimination is a serious noneconomic injury that is sufficient 

to support standing.

As for the ripeness questions of whether this harm is too 

remote and whether delayed review will result in significant 

harm, the Court held in the bidding cases that the plaintiffs 

seeking to prevent future deprivation of the equal opportunity 

to compete need only demonstrate they will “sometime in the 

relatively near future” bid on a contract governed by such racebased financial incentives.33

[14] In a number of cases in other jurisdictions similar to 

the case at bar, courts have found plaintiffs to have standing 

in spite of the absence of any formal application under the 

challenged program or law.34 This is because standing does not 

30 Id., 465 U.S. at 739-40 (citation omitted).

31 Heckler v. Mathews, supra note 28.

32 Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984), 

abrogated on other grounds, Lexmark Intern. v. Static Control, ___ U.S. 

___, 134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014).

33 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S. Ct. 2097, 

132 L. Ed. 2d 158 (1995).

34 Dragovich v. U.S. Department of the Treasury, 764 F. Supp. 2d 1178 (N.D. 

Cal. 2011). See, also, Reno v. Catholic Social Services, Inc., 509 U.S. 43, 

113 S. Ct. 2485, 125 L. Ed. 2d 38 (1993); Teamsters v. United States, 431 

U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); LeClerc v. Webb, 419 

F.3d 405 (5th Cir. 2005); Terry v. Cook, 866 F.2d 373 (11th Cir. 1989); 

Waters v. Ricketts, 48 F. Supp. 3d 1271 (D. Neb. 2015).
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require exercises in futility.35 “Courts have long recognized 

circumstances in which a failure to apply may be overcome by 

facts which demonstrate the futility of such application.”36

In Teamsters v. United States,

37 the U.S. Supreme Court 

explained that “[i]f an employer should announce his policy of 

discrimination by a sign reading ‘Whites Only’ on the hiringoffice door, his victims would not be limited to the few who 

ignored the sign and subjected themselves to personal rebuffs.” 

Thus, the Court rejected the argument that those who failed 

to apply for the position that discriminatory practices made it 

difficult to obtain could not share in the “make-whole relief” 

that was sought in the action.38 Rather, such plaintiffs must 

show that they should be treated as applicants, or “potential 

victim[s],” of the discrimination, by showing they were actually deterred by the discriminatory practice and would have 

applied but for that practice.39

The Court explained that a plaintiff’s desire for a job need 

not be “translated into a formal application solely because of 

his unwillingness to engage in a futile gesture.”40 The nonapplicant is unwilling to subject himself or herself to the humiliation of certain rejection.41 Such a nonapplicant is as much a 

victim of discrimination as the applicant.42

Memo 1-95 was a published statement on DHHS’ official 

website that “heterosexuals only” need apply to be foster 

35 Dragovich v. U.S. Department of the Treasury, supra note 34. See, also, 

e.g., LeClerc v. Webb, supra note 34; Terry v. Cook, supra note 34.

36 Terry v. Cook, supra note 34, 866 F.2d at 378.

37 Teamsters v. United States, supra note 34, 431 U.S. at 365. See, also, e.g., 

Reno v. Catholic Social Services, Inc., supra note 34.

38 Teamsters v. United States, supra note 34, 431 U.S. at 367.

39 Id.

40 Id., 431 U.S. at 366.

41 See Teamsters v. United States, supra note 34.

42 See id.
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parents. It is legally indistinguishable from a sign reading 

“Whites Only” on the hiring-office door. Memo 1-95 clearly 

excluded same-sex couples and individuals who identified 

as homosexuals either from being licensed or from having 

state wards placed in their homes. There is no dispute that 

all the plaintiffs were ready and able to be foster parents, 

were aware of and deterred by Memo 1-95, and would have 

taken further steps to become foster parents but for the barrier expressed in Memo 1-95. The plaintiffs considered any 

further action to be futile and did not wish to subject themselves to the humiliation of rejection and the stigmatic harm 

of unequal treatment.

There was a barrier to equal treatment and serious noneconomic injuries that the plaintiffs would be imminently 

subjected to upon application to become foster parents. The 

plaintiffs could only ultimately foster children through an 

uncertain exception to the absolute ban set forth in Memo 

1-95 or through a five-tier review procedure that subjected 

them to increased scrutiny because of their sexual orientation. In either scenario, the plaintiffs would suffer stigmatic 

harm stemming from systematic unequal treatment. By seeking forward-looking relief, the plaintiffs wished to avoid 

suffering the discrimination inherent in Memo 1-95 and the 

Pristow Procedure.

What is more, there is no dispute in the record that Todd 

and Joel actually began the process of applying by completing 

training, a home study, and background checks. After a significant delay in the progression of their case, they contacted 

the director as well as the chief executive officer of DHHS, 

who both either directly or indirectly confirmed the continuing force and effect of Memo 1-95. In addressing the by-then 

3-year delay, Winterer relied repeatedly on Memo 1-95 and 

stated it was “still in force.” In an action where multiple plaintiffs seek identical injunctive or declaratory relief, once the 

court determines that one of the plaintiffs has standing, it need 
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not decide the standing of the others in order to determine that 

the action is justiciable.43 For if one plaintiff prevails on the 

merits, the same prospective relief will issue regardless of the 

standing of the other plaintiffs.44 Clearly, Todd and Joel did 

not need to subject themselves to even more personal rebuffs 

in order to demonstrate their personal stake in this action and 

the ripeness of their claim.

We agree with the district court that the controversy raised 

by the plaintiffs is neither hypothetical nor speculative by virtue of the fact that the plaintiffs have not yet applied for and 

been denied foster care licenses and placement of state wards in 

their homes. And we agree with the district court that the harm 

at issue is appropriate for the preemptive justice that declaratory and injunctive relief provide. The plaintiffs were faced 

with the unavoidable inability to be treated on equal footing 

if they wished to pursue being foster parents, and the district 

court’s order effected an immediate resolution of that imminent 

and serious harm. We find no merit to the defendants’ narrow 

view that the action presented a hypothetical harm because 

the plaintiffs have not shown an ultimate inability to become 

foster parents.

43 Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 

47, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006); Melendres v. Arpaio, 

695 F.3d 990 (9th Cir. 2012); New Jersey Physicians, Inc. v. President 

of U.S., 653 F.3d 234 (3d Cir. 2011); Parker v. Scrap Metal Processors, 

Inc., 386 F.3d 993 (11th Cir. 2004); Save Our Heritage, Inc. v. F.A.A., 

269 F.3d 49 (1st Cir. 2001); Mountain States Legal Foundation v. 

Glickman, 92 F.3d 1228 (D.C. Cir. 1996); Kelley v. Selin, 42 F.3d 1501 

(6th Cir. 1995); Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 

2012); MacPherson v. DAS, 340 Or. 117, 130 P.3d 308 (2006); Cohen 

v. Zoning Bd. of Appeals, 35 Mass. App. 619, 624 N.E.2d 119 (1993). 

See, also, e.g., Joan Steinman, The Effects of Case Consolidation on the 

Procedural Rights of Litigants: What They Are, What They Might Be Part 

1: Justiciability and Jurisdiction (Original and Appellate), 42 U.C.L.A. 

L. Rev. 717 (1995).

44 Patel v. Dept. of Licensing and Regulation, 469 S.W.3d 69 (Tex. 2015).
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(b) Mootness

[15] The defendants alternatively claim the plaintiffs 

lacked a justiciable claim, because Memo 1-95 no longer 

represented official DHHS policy or practice by the time 

the plaintiffs filed this action. In order to maintain an action 

to enforce private rights, the plaintiff must show that he or 

she will be benefited by the relief to be granted.45 An action 

becomes moot when the issues initially presented in the 

proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action.46 At the latest, 

the defendants believe that any issue concerning Memo 1-95 

became moot in February 2015, when Memo 1-95 was taken 

off the DHHS website during the pendency of the parties’ 

motions for summary judgment.

This list of memorandums was designed to be viewed 

by the public, and new DHHS employees were directed to 

familiarize themselves with DHHS policy by looking at the 

memorandums on the website. As late as November 2011, 

DHHS officials with the authority to declare DHHS policy and 

procedure represented to same-sex couples that Memo 1-95 

was still in force. The continuing presence of Memo 1-95 on 

the DHHS website at the time this action was filed affirmed 

these representations.

Pristow intentionally avoided formal rescission of Memo 

1-95 and, in fact, avoided creating anything in writing disavowing it or stating a policy or practice different from that 

articulated in Memo 1-95. The Pristow Procedure was strictly 

verbal, and DHHS employees were told about the Pristow 

Procedure only if and when they were confronted with homosexual applicants. Pristow deliberately kept Memo 1-95 on 

the DHHS website, and the Pristow Procedure was never 

45 Id.

46 See Mullendore v. Nuernberger, 230 Neb. 921, 434 N.W.2d 511 (1989).
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communicated to the public. In fact, it can be surmised that 

the plaintiffs did not learn of the Pristow Procedure until discovery conducted during the current lawsuit.

[16] If a discriminatory policy is openly declared, then it 

is unnecessary for a plaintiff to demonstrate it is followed 

in order to obtain injunctive or declaratory relief.47 We thus 

find immaterial any dispute in the record as to whether the 

Pristow Procedure was a policy versus a practice, whether 

it “replaced” Memo 1-95, or the level of confusion within 

DHHS and its contractors concerning DHHS’ policy and practice when this action was filed. A secret change in policy or 

procedure cannot moot an action based on a published policy 

statement that has been cited by the agency as excluding the 

plaintiffs from eligibility.

Memo 1-95 was deliberately maintained on the website 

in order to give the public the impression that it represented 

official DHHS policy. The defendants cannot now complain 

that the plaintiffs believed it so, were deterred by the discriminatory exclusion set forth so clearly therein, and brought this 

action to challenge it.

[17,18] As for DHHS’ eleventh-hour removal of Memo 

1-95 from its website, it is well recognized that “a defendant 

cannot automatically moot a case simply by ending its unlawful conduct once sued.”48 If voluntary cessation of that kind 

rendered a case moot, “a defendant could engage in unlawful 

conduct, stop when sued to have the case declared moot, then 

pick up where he left off, repeating this cycle until he achieves 

all his unlawful ends.”49 “‘[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden 

of showing that it is absolutely clear the allegedly wrongful 

47 See U.S. v. Bd. of Educ. of School D. of Philadelphia, 911 F.2d 882 (3d 

Cir. 1990).

48 Already, LLC v. Nike, Inc., ___ U.S. ___, 133 S. Ct. 721, 727, 184 L. Ed. 

2d 553 (2013).

49 Id.
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behavior could not reasonably be expected to recur.’”50 This 

standard is “stringent.”51 The defendants made no attempt to 

meet this standard.

Finally, we note that any argument that the plaintiffs’ action 

is moot because the Pristow Procedure superseded Memo 1-95 

ignores the fact that the Pristow Procedure itself was challenged in this action and was encompassed by the injunctive 

and declaratory relief granted by the district court’s order. 

The defendants make no argument that the five-tier Pristow 

Procedure is no longer in effect or that the plaintiffs’ action 

with regard to the Pristow Procedure is otherwise nonjusticiable. In their brief, the defendants make no arguments 

concerning the Pristow Procedure other than to assert that it 

superseded Memo 1-95.

[19] The defendants mentioned at oral arguments that the 

Pristow Procedure was not specifically alleged in the plaintiffs’ 

complaint. Thus, they believed that if they could show that the 

Pristow Procedure replaced Memo 1-95, there was no action. 

But this court’s consideration of a cause on appeal is limited 

to errors assigned and discussed.52 The defendants assigned 

neither error below nor on appeal asserting that the Pristow 

Procedure was beyond the scope of the pleadings or that they 

lacked timely notice of the Pristow Procedure’s being at issue 

in the case. To the contrary, the plaintiffs argued to the district 

court that the Pristow Procedure was unconstitutionally discriminatory, and the defendants argued that it was not.

The plaintiffs, having no apparent way of knowing about 

the Pristow Procedure before filing their action, alleged as 

the operative fact in their complaint the discriminatory exclusion articulated in Memo 1-95. The defendants raised the 

50 Id. (quoting Friends of Earth, Inc. v. Laidlaw Environmental Services 

(TOC), Inc., 528 U.S. 167, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)).

51 Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 

supra note 50, 528 U.S. at 189.

52 See, Neb. Rev. Stat. § 25-1919 (Reissue 2016); In re Estate of Balvin, 295 

Neb. 346, 888 N.W.2d 499 (2016).
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Pristow Procedure in the hearing on the motions for summary 

judgment in the hope of mooting the plaintiffs’ claim. The 

defendants also hoped that a discriminatory process allowing 

for the possibility of fostering a child was somehow constitutional even if the absolute prohibition of Memo 1-95 was 

not. Finally, the defendants argued that the ultimate possibility of fostering inherent to the Pristow Procedure meant that 

the plaintiffs could demonstrate no imminent harm—an argument that, if accepted, could have left unequal scrutiny of the 

Pristow Procedure immune from challenge.

At the same time that the defendants relied so heavily on 

the Pristow Procedure for their defense, they remained silent 

as to the clearly expanded scope of the operative facts at issue 

in the plaintiffs’ action. While, in general, we caution plaintiffs 

to amend their pleadings when discovery reveals new operative 

facts, the defendants’ maneuverings here are unavailing.

We will not reverse the district court’s judgment on the 

ground that the Pristow Procedure superseded Memo 1-95. 

Memo 1-95 was openly declared, and DHHS chose not to 

inform the public that it was no longer followed. Neither did 

DHHS moot the plaintiffs’ case through its voluntary removal 

of Memo 1-95 from the website following the motions for 

summary judgment. And, regardless of the status of Memo 

1-95, the plaintiffs were the prevailing parties with regard to 

the discriminatory nature of the Pristow Procedure.

2. Attorney Fees

Beyond the defendants’ arguments attacking the justiciability of the plaintiffs’ underlying claims, with the ultimate goal 

of preventing the plaintiffs from being the prevailing parties 

for purposes of attorney fees, the defendants assert that there 

was insufficient evidence of attorney fees. The defendants 

make this argument solely on the ground that the evidence of 

attorney fees was filed with the clerk of the district court and 

is found only in the transcript. Evidence of attorney fees was 

not entered into evidence as exhibits and that evidence is not, 

therefore, found in the bill of exceptions.
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The attorney fees in this case were awarded pursuant to 

42 U.S.C. § 1988. Section 1988(b) states in relevant part 

that “[i]n any action or proceeding to enforce a provision 

of [§] 1983, . . . the court, in its discretion, may allow the 

prevailing party, other than the United States, a reasonable 

attorney’s fee as part of the costs . . . .” We have said that 

affidavits included in the transcript, but not received as 

evidence and appearing in the bill of exceptions, cannot be 

considered on appeal by the appellate court.53 Such affidavits 

must be “preserved” for appellate review in the bill of exceptions.54 We have explained that offering of a bill of exceptions 

is necessary at some point if the appellate court is to consider 

errors assigned by the appellant which require a review of the 

evidence that was received by the tribunal from which the 

appeal is taken.55

But the defendants are the appellants in this case; they wish 

us to consider their assignment of error that the lower court 

abused its discretion in awarding attorney fees. Generally, in 

determining whether there is merit to an appellant’s claim 

that the lower court’s judgment should be reversed, it will be 

presumed in the absence of a bill of exceptions that issues 

of fact presented by the pleadings were established by the 

evidence.56

True, where an appellant argues on appeal that the evidence 

is insufficient on a point for which an appellee bore the burden of proof, we will not simply presume there was evidence 

before the lower court, which we have no evidence of despite 

the filing of a bill of exceptions.57 But we have never held 

53 See, State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006); State v. Allen,

159 Neb. 314, 66 N.W.2d 830 (1954).

54 State v. Allen, supra note 53, 159 Neb. at 321, 66 N.W.2d at 835.

55 See Marcotte v. City of Omaha, 196 Neb. 217, 241 N.W.2d 838 (1976).

56 See, State v. Allen, supra note 53; McMillan v. Diamond, 77 Neb. 671, 110 

N.W. 542 (1906).

57 See, e.g., Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005).
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that an appellant may successfully assert that the evidence was 

insufficient to support a lower court’s order when the record 

on appeal affirmatively demonstrates that sufficient evidence 

was considered by the lower court, with notice to and without 

objection by the appellant, but that such evidence was received 

through filing with the clerk of the court rather than at a hearing wherein it became part of the bill of exceptions.

To the contrary, in Zwink v. Ahlman,

58 we expressly rejected 

the appellants’ contention that the lower court’s judgment was 

not sustained by the evidence because the necessary evidence 

was attached to the petition and placed in the transcript, but 

was not entered as an exhibit to be found in the bill of exceptions. We observed that the journal of the trial court showed 

that the evidence in question was considered and that no 

specific objection was raised on the ground that the evidence 

was not formally admitted.59 We concluded that under such 

circumstances, the evidence was to be considered as if made a 

part of the bill of exceptions.60

We explained that it would be repugnant to the general 

rules of equity governing the underlying action to dismiss 

the proceeding because the evidence was “not formally introduced in evidence when the transcript shows they were duly 

filed and the judgment of the trial court shows [the evidence 

was] considered by it.”61 Furthermore, to remand the cause 

for retrial because the evidence was not formally introduced 

when the evidence was before us in the transcript and was 

considered by the trial court, “would appear a circuitous and 

useless procedure if a proper decision is possible by considering them as evidence along with the bill of exceptions at 

this time.”62

58 Zwink v. Ahlman, 177 Neb. 15, 128 N.W.2d 121 (1964).

59 See id.

60 Id.

61 Id. at 19-20, 128 N.W.2d at 124.

62 Id. at 20, 128 N.W.2d at 124-25.
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Similarly, in Nimmer v. Nimmer,

63 we affirmed an award of 

attorney fees despite the fact that the evidence of those fees was 

found only as an itemized list of services rendered, attached to 

the application for fees, and not in the bill of exceptions. We 

observed that it was clear that there was a hearing on the fees, 

but no bill of exceptions was created for that hearing.

And in Chilen v. Commercial Casualty Ins. Co.,

64 we 

affirmed the award of attorney fees despite the fact that the 

evidence of such fees, though apparently presented at the hearing, was not embodied in the bill of exceptions. The appellant 

was the party opposing the fees, and we found that with no 

bill of exceptions, the pleadings were sufficient to support the 

judgment awarding the fees.65

The defendants’ only argument that there was insufficient 

evidence to support the lower court’s award of fees is that the 

evidence of those fees is found in the transcript rather than in 

the bill of exceptions. However, the appellate record is clear 

that extensive evidence supporting attorney fees was filed with 

the clerk of the district court, examined by the district court, 

and addressed by both parties during the hearing on fees and 

costs. The defendants did not raise at this hearing any issue 

regarding the method by which the evidence was brought 

before the court. They did not raise any objection to the fees 

other than to assert that they were excessive. The district court 

clearly found the exhibits adequate and reduced the amount 

of its award in light of the defendants’ arguments, made upon 

examination of the evidence found in the transcript.

These facts are clearly distinguishable from Lomack v. KohlWatts,

66 a case relied upon by the defendants. In Lomack, it was 

the appellant who assigned as error the denial of fees below. 

63 Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979).

64 Chilen v. Commercial Casualty Ins. Co., 135 Neb. 619, 283 N.W. 366 

(1939).

65 Id.

66 Lomack v. Kohl-Watts, 13 Neb. App. 14, 688 N.W.2d 365 (2004).
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And there was no indication in the appellate record that the 

evidence of attorney fees, found only in the transcript, was 

actually filed with the clerk of the lower court. Neither was 

there any evidence that the opposing party had notice of the 

evidence and an opportunity to object to it, or that such evidence was considered by the lower court in making its determination regarding fees.

[20] On appeal, a trial court’s decision awarding or denying 

attorney fees will be upheld absent an abuse of discretion.67

Upon the record before us, we cannot conclude that the district 

court abused its discretion in awarding costs and attorney fees 

to the plaintiffs.

3. Hearsay

We do not need to address the defendants’ assignment of 

error relating to the admission in evidence of several newspaper articles. The defendants assert these articles were inadmissible hearsay. These articles played no role in our determination that the underlying action was justiciable.

VI. CONCLUSION

We find no merit to the defendants’ claims that the underlying action was not justiciable. Nor do we find any merit to the 

defendants’ claims that the district court abused its discretion 

in awarding costs and attorney fees, simply because the evidence of those fees is found in the appellate transcript rather 

than in the bill of exceptions. We find no merit to the defendants’ assignments of error; therefore, we affirm the judgment 

of the district court.

Affirmed.

67 Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016).