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303 Nebraska Report

STATE EX REL. PETERSON v. EBKE

Cite as 303 Neb. 637

State of Nebraska ex rel. Douglas J. Peter

Attorney General, and Scott Frakes,

of the Nebraska Department of Correcti

Services, appellees, v. Senator Laura 

chairperson of the Judiciary Commit

of the Nebraska Legislature,

et al., appellants

___ N.W.2d ___

Filed July 12, 2019. No. S-18-795.

1. Moot Question: Jurisdiction: Appeal and Error. Because mootness is 

a justiciability doctrine that operates to prevent courts from exercising 

jurisdiction, appellate courts review mootness determinations under the 

same standard of review as other jurisdictional questions.

2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question 

that does not involve a factual dispute is determined by an appellate 

court as a matter of law, which requires the appellate court to reach a 

conclusion independent of the lower court’s decision.

3. Jurisdiction. An actual case or controversy is necessary for the exercise 

of judicial power.

4. Courts: Judgments. In the absence of an actual case or controversy 

requiring judicial resolution, it is not the function of the courts to render 

a judgment that is merely advisory.

5. Moot Question. Mootness refers to events occurring after the filing 

of a suit which eradicate the requisite personal interest in the dispute’s 

resolution that existed at the beginning of the litigation.

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

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

a legally cognizable interest in the outcome of the action.

7. Moot Question: Words and Phrases. A moot case is one which seeks 

to determine a question that no longer rests upon existing facts or 

rights—i.e., a case in which the issues presented are no longer alive.

Nebraska Supreme Court Online Library

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

07/12/2019 09:06 AM CDT
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8. Moot Question. The central question in a mootness analysis is whether 

changes in circumstances that prevailed at the beginning of litigation 

have forestalled any occasion for meaningful relief.

9. Legislature: Contracts: Time. The typical understanding of state legislative bodies is that, with the limited exception of valid contractual 

obligations with third parties, pending matters die at the expiration of 

the legislative body’s 2-year term.

10. Legislature. Any current legislative body represents the people who 

elected it and should have power equal to its predecessor.

11. ____. The will of the past electorate should not control the future electorate and its representatives.

12. Legislature: Time. The authority of a legislature is limited to the period 

of its own existence.

13. Public Purpose: Statutes. An investigatory committee, being the mere 

agency of the body which appointed it, dies when the body itself dies, 

unless it is continued by law.

14. Legislature: Time. The general rule is that the period of legislative 

existence is its 2-year term, and committee investigations and attendant 

subpoenas automatically expire upon the expiration of that term.

15. Legislature. The Nebraska Unicameral Legislature, while unique 

because it is not a bicameral system, is not a continuing body.

16. Constitutional Law: Legislature. The Nebraska Constitution is not a 

grant, but, rather, is a restriction on the legislative power in light of the 

otherwise plenary power of the people of each state to do as they will.

17. Legislature: Time. Because the Nebraska Legislature is not a continuing body, a particular legislature’s biennium period of existence ceases 

at the end its biennium term.

18. Legislature: Time: Presumptions. Like other pending matters, committee investigations and attendant subpoenas are presumed to cease to 

exist at the end of the term in which they commenced.

19. Legislature: Statutes: Time. There is no applicable statute or legislative rule providing for the continuing viability of pending subpoenas 

issued by an investigatory committee of a prior biennium term.

20. Moot Question: Appeal and Error. Under certain circumstances, an 

appellate court may entertain the issues presented by a moot case when 

the claims presented involve a matter of great public interest or when 

other rights or liabilities may be affected by the case’s determination.

21. Moot Question: Words and Phrases. In determining whether the 

public interest exception should be invoked, the court considers the 

public or private nature of the question presented, the desirability of an 

authoritative adjudication for future guidance of public officials, and the 

likelihood of future recurrence of the same or a similar problem.
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STATE EX REL. PETERSON v. EBKE

Cite as 303 Neb. 637

Appeal from the District Court for Lancaster County: Lor

A. Maret, Judge. Appeal and motion to substitute partie

dismissed.

William M. Connolly and Patrick R. Guinan, of Erickson & 

Sederstrom, P.C., for appellants.

Douglas J. Peterson, Attorney General, Ryan S. Post, James 

D. Smith, and David A. Lopez for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Per Curiam

I. NATURE OF CASE

The underlying action in this case involves resistance to an 

investigatory subpoena issued during the 105th Legislature by 

the Judiciary Committee of the Nebraska Legislature, with the 

approval of the Executive Committee of the 105th Legislature. 

The subpoena commanded the attendance of the director of the 

Department of Correctional Services to testify at a scheduled 

committee hearing. Before the scheduled hearing, the State of 

Nebraska, represented by the Attorney General, and the director of the Department of Correctional Services (collectively 

the Department) sued the senators who were on the Judiciary 

Committee and the Executive Board of the Legislative Council 

at the time the subpoena was issued, as well as the Clerk of 

the Legislature who signed the subpoena (collectively the 

Senators). The Department alleged, among other things, that 

the Legislature as a whole did not vote to approve the investigation or the issuance of the subpoena; thus, the subpoena was 

not in the discharge of any duty imposed by the Legislative 

Council, by statute, or by a resolution of the Legislature, as 

described by Neb. Rev. Stat. § 50-401 (Reissue 2010). The 

Department filed an action to quash the subpoena pursuant to 

Neb. Rev. Stat. § 50-406 (Cum. Supp. 2018), and also sought, 

as to the Senators, declaratory judgment under the Uniform 
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Declaratory Judgments Act1 and injunctive relief in relation 

to various aspects of the procedure leading up to and including the subpoena. Before the Senators filed an answer to the 

complaint, the court granted the Department’s motion to quash 

the subpoena and denied the Senators’ motion to dismiss. The 

Senators appeal from the court’s order. The Department asserts 

that the appeal is moot because the subpoena was “issued by 

a committee of a Legislature which no longer exists.”2 We 

agree and hold that there is no longer a case and controversy 

as required for the exercise of our judicial power. A determination of the underlying merits of the dispute would be 

purely advisory.

II. BACKGROUND

1. Internal Compl

Under § 84-907.

On March 21, 2018, Senator Ernie Chambers filed a complaint under Neb. Rev. Stat. § 84-907.10(1) (Reissue 2014) 

with Senator Dan Watermeier, chairperson of the Executive 

Board of the Legislative Council of the 105th Legislature. 

Chambers’ complaint questioned, among other things, whether 

the Nebraska Department of Correctional Services followed 

applicable state and federal laws in selecting the substances 

for execution by lethal injection and in allegedly withholding notices and public access to various documents, in violation of Neb. Rev. Stat. §§ 84-906.01 (Reissue 2014) and 

84-907(2) (Cum. Supp. 2018). The complaint also alleged that 

the Department of Correctional Services’ protocol violated the 

prohibition against cruel and unusual punishment found in the 

U.S. and Nebraska Constitutions, because the paralytic agent 

of the four-drug protocol served no valid purpose and would 

mask any signs of the condemned prisoner’s distress, pain, or 

suffering during the execution.

1 Neb. Rev. Stat. § 25-21,149 et seq. (Reissue 2016).

2 Brief for appellees at 8.
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2. Complaint Forwarded 

 Judiciary Committe

Watermeier referred the internal complaint to Senator Laura 

Ebke, as chairperson of the Judiciary Committee of the 105th 

Legislature, pursuant to § 84-907.10(2), which requires the 

chairperson or committee staff member of the Executive Board 

to refer the complaint to “the standing committee of the 

Legislature which has subject matter jurisdiction over the issue 

involved in the rule or regulation or which has traditionally 

handled the issue.” Apparently, there was no objection, as provided for by rule 6, § 2(a), of the Rules of the 105th Nebraska 

Unicameral Legislature, Second Session (2018), that the matter 

had been referred to the wrong committee.

3. Public Hea

The Judiciary Committee of the 105th Legislature apparently chose to forgo requesting a written response from the 

agency as described in § 84-907.10(3). Instead, on April 9, 

2018, the Judiciary Committee elected, by majority vote, to 

conduct a public hearing pursuant to § 50-406 and rule 3, § 1, 

of the Rules of the 105th Nebraska Unicameral Legislature, 

and it sent a letter to the chairperson of the Executive Board 

so stating. The investigation sought to address concerns relating to the Department of Correctional Services’ rules and 

regulations outlining the protocol for execution of the death 

penalty, codified at title 69, chapter 11, of the Nebraska 

Administrative Code. The concerns related to the process 

by which the protocol was adopted, its constitutionality, and 

whether it is consistent with the Legislature’s intent when it 

passed 2009 Neb. Laws, L.B. 36. The hearing was scheduled 

for May 8.

Section 50-406 provides in full:

In the discharge of any duty imposed by the Legislative 

Council, by statute, or by a resolution of the Legislature, 

the council, any committee thereof, and any standing or 

special committee created by statute or resolution of the 

Legislature may hold public hearings and may administer 
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oaths, issue subpoenas when the committee has received 

prior approval by a majority vote of the Executive Board 

of the Legislative Council to issue subpoenas in connection with the specific inquiry or investigation in question, 

compel the attendance of witnesses and the production of 

any papers, books, accounts, documents, and testimony, 

and cause the depositions of witnesses to be taken in the 

manner prescribed by law for taking depositions in civil 

actions in the district court. The council or the committee may require any state agency, political subdivision, 

or person to provide information relevant to the committee’s work, and the state agency, political subdivision, 

or person shall provide the information requested within 

thirty days after the request except as provided for in a 

subpoena. The statute or resolution creating a committee may prescribe limitations on the authority granted by 

this section.

Litigation to compel or quash compliance with authority exercised pursuant to this section shall be advanced 

on the trial docket and heard and decided by the court as 

quickly as possible. Either party may appeal to the Court 

of Appeals within ten days after a decision is rendered.

The district court of Lancaster County has jurisdiction 

over all litigation arising under this section. In all such 

litigation the executive board shall provide for legal representation for the council or committee.

Section 50-401 creates the Legislative Council, “which shall 

consist of all of the members of the Legislature” and shall 

have as its function “to consider legislative policies between 

sessions of the Legislature and carry out the duties imposed by 

section 50-402.” Neb. Rev. Stat. § 50-402(8) (Reissue 2010), 

in turn, provides that it shall be the duty of the Legislative 

Council to

set up subcommittees within the executive board to carry 

out functions such as investigation of any area which it 

may decide is in the public interest with power to employ 
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such additional personnel as may be needed to carry 

out the intent and activities of the executive board or 

the Legislature.

Rule 3, § 1, of the Rules of the 105th Nebraska Unicameral 

Legislature, in part, described committee investigatory hearings:

(a) Each committee of the Legislature is authorized to 

hold such hearings, to sit and act at such times and places 

during the sessions, recesses, and adjourned periods of 

the Legislature, to require by subpoena or otherwise the 

attendance of such witnesses and the production of such 

correspondence, books, papers, and documents, and to 

take such testimony, as it deems advisable. Each committee may make investigation into any matter within its 

jurisdiction, may report such hearings as may be had by 

it, and may present to the Legislature for its consideration 

any final reports and recommendations for action resulting from such investigations.

(b) A committee’s subject-matter jurisdiction extends to 

all matters specified in the act creating the committee, or 

to all matters reasonably comprehended in the name of the 

committee. A committee’s particular jurisdiction extends 

to any bill, resolution, or other measure referred to it by 

the Legislature, until final report of the measure has been 

made by the committee to the Legislature. A committee’s 

particular jurisdiction shall also include review of the 

budgets of agencies, boards, and commissions reasonably 

encompassed in its subject-matter jurisdiction.

(c) No committee may exercise any of the above mentioned powers in a manner contrary to the Rules of the 

Legislature or in a manner which exceeds the scope of the 

act defining the purpose of the committee.

Rule 3, § 21, of the Rules of the 105th Nebraska Unicameral 

Legislature described the subpoena powers of committees in 

relation to such hearings:

It is within the inherent power of any legislative committee to gather information pursuant to its regular 
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functions, and to conduct investigations of matters within 

its subject-matter jurisdiction.

A committee’s power of subpoena should not be exercised unless the committee has determined that no other 

method of securing the desired information would be successful or practicable, and that the matter is of primary 

importance to the welfare of the State of Nebraska.

A committee of the Legislature conducting an investigation and gathering information, whether pursuant to 

legislative direction or pursuant to its regular functions of 

oversight and bill preparation, shall observe the following 

procedures in addition to regular committee procedures 

whenever subpoenas are issued:

(A) Issuance of Subpoenas.

(i) A committee may, by a majority vote of all of its 

members taken at a meeting properly called, issue a subpoena requiring a person to appear before the committee 

and be examined in reference to any matter within the 

scope of the inquiry or investigation being conducted by 

the committee, but only when the committee has received 

prior approval by a majority vote of the Executive Board 

to issue subpoenas in connection with the specific inquiry 

or investigation in question.

. . . .

(iii) While the Legislature is in session, a committee 

deciding to issue subpoenas must promptly report each 

issuance to the Legislature. A record shall be made in the 

Journal reflecting the date the subpoena was issued, to 

whom it was issued, for what purpose it was issued, and 

the date on which testimony or production of documents 

is to take place. Under extraordinary circumstances, the 

identity of the person subpoenaed may be withheld from 

publication if necessary to protect the safety of an individual or the confidentiality of the matters to be heard.

(iv) A person subpoenaed to attend a hearing of a committee shall receive the same fees and allowances as a 
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person subpoenaed to give testimony in an action pending 

in a court of record.

(B) Notice to Witnesses.

. . . .

(ii) Any person who is served with a subpoena to 

attend a hearing of a committee shall also be served with 

a copy of the act defining the purpose of the committee, 

a copy of the rules under which the committee functions, 

a general statement informing him or her of the subject 

matter of the committee’s investigation or inquiry, and a 

notice that he or she may be accompanied at the hearing 

by counsel of his or her own choosing.

. . . .

(G) Contempt.

. . . .

The chairperson of a committee may apply to the 

Legislature or, during the interim, to the district court 

of any county to compel obedience by proceedings for 

contempt.

(H) Penalties.

(i) A person guilty of contempt under the provision 

of these rules shall be subject to punishment pursuant to 

RRS 50-105 and 50-106 during the session, or to RRS 

50-407 when the Legislature is not in session.

(ii) If a committee fails in any material respect to 

comply with the requirements of these rules, any person subject to a subpoena or a subpoena duces tecum 

who is injured by such failure shall be relieved of any 

requirement to attend the hearing for which the subpoena 

was issued or, if present, to testify or produce evidence 

therein; and such failure shall be a complete defense 

in any proceeding against such person for contempt or 

other punishment.

4. Decision to Issue Su

On April 10, 2018, the Judiciary Committee formally invited 

Scott Frakes, director of the Department of Correctional 
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Services, to testify at the hearing. Frakes did not respond to 

the invitation. On April 18, Ebke asked the Executive Board 

to provide approval to the Judiciary Committee to issue a subpoena and possible subpoenas duces tecum to Frakes. While 

there was some discussion at the meeting of the Executive 

Board as to whether to give Frakes more time to respond to the 

invitation so that he could attend the hearing voluntarily, April 

18 was the day of adjournment for the legislative session. A 

majority (by one vote) of the Executive Board voted to approve 

the Judiciary Committee’s issuance of a subpoena.

(a) Subpoena

A subpoena was issued to Frakes on April 24, 2018. The 

subpoena states: “Pursuant to statutory section 50-406 R.R.S., 

the Judiciary Committee of the Nebraska Legislature hereby 

compels your presence to testify at 9:00 a.m. on Tuesday, 

May 8, 2018, in Room 1113 of the Nebraska State Capitol 

Building, 1445 K Street, Lincoln, NE 68508.” The subpoena 

was signed by Ebke, as the chairperson of the Judiciary 

Committee of the Nebraska Legislature, and by the Clerk of 

the Nebraska Legislature.

(b) Informational Letter

On April 25, 2018, the Judiciary Committee sent Frakes 

an informational letter pursuant to rule 3, § 21(B)(ii), of the 

Rules of the 105th Nebraska Unicameral Legislature. The 

letter explained that a majority of the Judiciary Committee 

had voted to conduct a hearing related to concerns over 

the Department of Correctional Services’ execution protocol 

and, after obtaining the approval of the Executive Board, a 

majority of the Legislative Council had voted to subpoena 

Frakes’ testimony. The Judiciary Committee explained that 

after Frakes had ignored a series of attempts to contact him 

and make arrangements for his voluntary testimony, the committee had determined that there was no method other than a 

subpoena of securing his attendance at the hearing. The letter 

informed Frakes that he could be accompanied at the hearing 
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by counsel of his own choosing. It did not specify whether 

Frakes would receive any compensation in the form of fees 

and allowances for his time.

5. Complain

On May 1, 2018, before the scheduled date of the hearing, 

the Department sued the Senators. The complaint generally set 

forth the facts already described and asserted that the district 

court had jurisdiction over the action under Neb. Rev. Stat. 

§ 24-302 (Reissue 2016) and §§ 25-21,149 and 50-406.

In what was designated as its first cause of action, the 

Department focused on its conclusion that § 84-907.10 did 

not authorize the Judiciary Committee to hold hearings or 

issue subpoenas in relation to internal complaints thereunder. The Department requested a declaration that in issuing 

the subpoena, the Senators had violated § 50-406 and rule 3, 

§ 1 or § 21, of the Rules of the 105th Nebraska Unicameral 

Legislature. The Department also asked the court to enjoin the 

Senators from future acts violating these provisions.

In its designated second cause of action, the Department 

focused on its allegation that the subpoena was not issued in 

the discharge of a duty imposed by the Legislative Council, 

by statute, or by a resolution of the Legislature, as required by 

§ 50-406. According to the Department, all of these duties can 

be imposed only by a majority vote of the Legislative Council, 

which is the entire Legislature. Because no vote by the entire 

Legislature was held in relation to the hearing and subpoena at 

issue, the Department asserted that the hearing and subpoena 

were not in the discharge of any of the three duties specified 

by § 50-406. The Department again requested that the court 

declare that the Senators violated § 50-406 and enjoin the 

Senators from similar future acts violating § 50-406.

In its designated third cause of action, the Department 

focused on allegations that Watermeier had referred Chambers’ 

internal complaint to the wrong committee, asserting that 

the Government, Military and Veterans Affairs Committee 

was the standing committee with “subject-matter jurisdiction” 
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over the issues involved in the internal complaint. Further, in 

its third cause of action, the Department highlighted its allegations that the Senators failed to follow rule 3, § 21(B)(ii), 

of the Rules of the 105th Nebraska Unicameral Legislature 

by failing to serve Frakes with a copy of the act defining the 

purpose of the Judiciary Committee and by not offering to 

pay him fees and allowances commensurate with those given 

to persons subpoenaed to give testimony in an action pending 

in a court. Finally, in its designated third cause of action, the 

Department asserted that the vote of the Judiciary Committee 

had not been “properly called.” The Department asserted 

that in the process of issuing the subpoena, the Senators 

had thereby violated rule 3, § 21(A)(i) and (iv) and (B)(ii), 

of the Rules of the 105th Nebraska Unicameral Legislature. 

The Department asked for a declaration that the Senators 

“failed in all material respects to comply with the requirements of the Rules of the Nebraska Unicameral Legislature 

and accordingly, . . . Frakes is relieved of any requirement to 

attend the hearing for which the subpoena was issued pursuant to Rule 3, Section 21(H)(ii) of the Rules of the Nebraska 

Unicameral Legislature.”

In its designated fourth cause of action, the Department 

asserted that the Senators’ actions were not within the sphere 

of legitimate legislative activity and that by virtue of the 

subpoena, the Senators sought to exercise a power properly 

belonging to the judicial branch by determining a case and 

controversy regarding the Department’s compliance with the 

Administrative Procedure Act, the constitutionality of the execution protocol, and any other conflicts between the execution protocol and state and federal laws and regulations. The 

Department requested a declaration that the Senators thereby 

violated the separation of powers provision in the Nebraska 

Constitution, Neb. Const. art. II, § 1, and asked that the court 

enjoin the Senators from future acts violating article II, § 1.

In its fifth and final designated cause of action, the 

Department requested that pursuant to § 50-406, the court 
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quash the subpoena, due to the alleged violations of Neb. 

Const. art. II, § 1; § 50-406; and rule 3, §§ 1 and 21, of the 

Rules of the 105th Nebraska Unicameral Legislature.

In its prayer for relief, in addition to the relief requested 

within its five causes of action, the Department asked for costs.

6. Motion to Qua

The day after filing its complaint, the Department filed a 

motion to quash subpoena. The motion stated that the grounds 

for the motion had been set forth in the complaint and included, 

but were not limited to, the Senators’ alleged violations when 

issuing the subpoena of §§ 50-406 and 84-907.10 and rule 3, 

§§ 1 and 21, of the Rules of the 105th Nebraska Unicameral 

Legislature. The motion also described that pursuant to 

§ 50-406, the matter “‘shall be advanced on the court docket 

and heard and decided by the court as quickly as possible.’”

7. Order Staying Sub

and Hear

Pursuant to a stipulation, on May 4, 2018, the court stayed 

the subpoena and the “subpoena’s hearing date” until “such 

time as the Court finally resolves the issues raised in the 

Complaint.”

8. Motion to Dism

On May 10, 2018, the Senators moved to dismiss the complaint pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(1), (4), (5), 

and (6), on the alternative grounds that (1) the named defendants were absolutely immune from litigation pursuant to the 

Neb. Const. art. III, § 26, the speech and debate clause; (2) 

the judiciary lacks the authority under separation of powers 

principles to declare the Judiciary Committee’s actions unconstitutional, issue a permanent injunction against the Judiciary 

Committee or its members, quash the subpoena, or enter a 

money judgment against the Judiciary Committee or its members; (3) § 50-406 is overbroad and violates the speech and 

debate and separation of powers clauses to the extent it gives 
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courts the power to oversee legislative committees’ authority 

to hold public hearings, make specific inquiry or investigation, compel the production of documents or testimony, and 

require a state agency to provide information relevant to the 

committee’s work; (4) the Attorney General lacks standing to 

sue members of the Legislature, given the Attorney General’s 

duty to defend the Legislature imposed by Neb. Rev. Stat. 

§ 84-209 (Reissue 2014); and (5) service was improper because 

the Attorney General attempted to serve process on each of the 

individual defendants by sending the summonses by certified 

mail to the Attorney General’s own offices.

9. Hearing on Motion to D

and Motion to Qu

A hearing was held on the Senators’ motion to dismiss and 

the Department’s motion to quash. At the hearing, the Senators 

focused on legislative immunity, arguing that the analysis 

“starts and ends with” the fact that committee issuance of 

investigatory subpoenas is within the legitimate legislative 

sphere and thus the district court lacked jurisdiction to “pass 

judgment on the committee’s processes and motives for issuing the subpoena.” The Senators asserted that § 50-406 could 

not waive, through legislative enactment, a constitutionally 

protected immunity.

The Department responded that while it agreed the members 

of the Legislature would be immune from litigation stemming 

from a lawfully issued subpoena, this subpoena was not lawfully issued. The Department also asserted that the Senators 

could not rely on § 50-406 in issuing the subpoena while at 

the same time challenging as unconstitutional the language of 

§ 50-406 purporting to grant the district court for Lancaster 

County jurisdiction over litigation to compel or quash compliance with authority exercised pursuant to § 50-406.

On the underlying merits of the motion to quash, the 

Senators argued that the investigatory subpoena was within 

its authority to review and consider whether adjustments are 
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necessary to its laws pertaining to the death penalty and delegating to the executive branch the development of the death 

penalty protocol. The Department argued that the subpoena at 

issue was not legislative and that the Senators failed to comply 

with the procedure set forth in § 84-907.10.

10. Order Denying Dismiss

Sustaining Motion to 

The court ruled on both the Senators’ motion to dismiss and 

the Department’s motion to quash in an order dated August 

8, 2018.

The court overruled the Senators’ motion to dismiss. The 

court’s reasoning for this ruling was that the motion raised 

“several issues, including novel questions under Nebraska’s 

Constitution[,] that our appellate courts have not yet addressed.” 

Thus, the court “decline[d] to sustain the Motion [to dismiss].”

The court granted the Department’s motion to quash. The 

court reasoned that while the subpoena may have satisfied 

the requirement that it receive prior approval by a majority 

vote of the Executive Board of the Legislative Council, the 

subpoena was not “‘[i]n the discharge of any duty imposed 

by the Legislative Council, by statute, or by a resolution of 

the Legislature . . . .’” The court noted that the Legislative 

Council and the Executive Board are distinct decisionmaking 

bodies and that § 50-402 refers to the Legislative Council as 

having the duty of collecting information, while Neb. Rev. 

Stat. § 50-401.01 (Cum. Supp. 2018), describes the Executive 

Board’s duties as administrative, such as hiring staff and contracting for professional services. The court did not specifically address rule 3, § 21, of the Rules of the 105th Nebraska 

Unicameral Legislature.

11. Notice of Appeal 

Appellate Moti

On August 20, 2018, the Senators filed their notice of 

appeal. On January 9, 2019, the 106th Nebraska Legislature 
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commenced. Because the 105th Legislature sat in an even year, 

the end of the 105th Legislature was the end of a biennium. 

The new biennium commenced with the 106th Legislature in 

2019. Several of the named senators are no longer in office. 

The Department filed a “Suggestion of Mootness” based on 

this change of circumstances.

III. ASSIGNMENTS OF ERROR

The Senators assign that the lower court erred in (1) not 

finding that the Senators are absolutely immune from litigation under Nebraska’s speech and debate clause; (2) not 

finding that § 50-406, on its face, violates the Nebraska 

Constitution’s speech and debate and separation of powers 

clauses; (3) not finding that § 50-406, as applied to legislative subpoenas, violates the Nebraska Constitution’s speech 

and debate and separation of powers clauses; (4) not finding 

that the Attorney General lacked standing or capacity to sue 

the Senators; (5) not dismissing the complaint; (6) finding that 

the Judiciary Committee was not discharging a duty imposed 

by the Legislative Council, by statute, or by resolution in the 

Legislature; (7) not finding that the Judiciary Committee had 

jurisdiction to investigate, hold hearings, and issue subpoenas 

independent of § 50-406; and (8) granting the Department’s 

motion to quash.

IV. STANDARD OF REVIEW

[1,2] Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, we have 

reviewed mootness determinations under the same standard of 

review as other jurisdictional questions.3 A jurisdictional question that does not involve a factual dispute is determined 

by an appellate court as a matter of law, which requires the 

appellate court to reach a conclusion independent of the lower 

court’s decision.4

3 See Al-Ameen v. Frakes, 293 Neb. 248, 876 N.W.2d 635 (2016).

4 Id.
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V. ANALYSIS

[3,4] Mootness is a justiciability doctrine that operates to 

prevent courts from exercising jurisdiction.5 An actual case or 

controversy is necessary for the exercise of judicial power.6 In 

the absence of an actual case or controversy requiring judicial 

resolution, it is not the function of the courts to render a judgment that is merely advisory.7

 Therefore, as a general rule, a 

moot case is subject to summary dismissal.8 It is well established that when a party or parties are aware that appellate 

issues have become moot during the pendency of the appeal 

and such mootness is not reflected in the record, in the interest 

of judicial economy, a party may file a suggestion of mootness 

in the Nebraska Supreme Court or Nebraska Court of Appeals 

as to the issue or issues claimed to be moot.9

[5-8] Mootness refers to events occurring after the filing 

of a suit which eradicate the requisite personal interest in 

the dispute’s resolution that existed at the beginning of the 

litigation.10 An action becomes moot when the issues initially 

presented in the proceedings no longer exist or the parties lack 

a legally cognizable interest in the outcome of the action.11 A 

moot case is one which seeks to determine a question that no 

longer rests upon existing facts or rights—i.e., a case in which 

the issues presented are no longer alive.12 The central question 

in a mootness analysis is whether changes in circumstances 

5 Applied Underwriters v. S.E.B. Servs. of New York, 297 Neb. 246, 898 

N.W.2d 366 (2017).

6 Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (2018).

7 BryanLGH v. Nebraska Dept. of Health & Human Servs., 276 Neb. 596, 

755 N.W.2d 807 (2008).

8 Id.

9 Id.

10 Nebuda v. Dodge Cty. Sch. Dist. 0062, 290 Neb. 740, 861 N.W.2d 742 

(2015).

11 Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018).

12 Id.
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that prevailed at the beginning of litigation have forestalled any 

occasion for meaningful relief.13

The change in circumstances that the Department argues 

renders this appeal moot is the commencement of the 106th 

Legislature. We agree. The underlying complaint challenged 

the subpoena that was issued by the 105th Legislature to attend 

a hearing to be conducted by the Judiciary Committee of the 

105th Legislature. The 105th Legislature, sitting in 2018, was 

the last legislative year of a biennium term. The order that is the 

subject of this appeal, which quashed the subpoena as unlawfully issued and which refused to dismiss the Department’s 

action on the ground of legislative immunity, was issued during that prior biennium term and before the commencement of 

the present biennium term. The hearing Frakes resisted attending was never held and, as we will explain, the investigation, 

hearing, and subpoena at issue automatically expired upon the 

completion of the legislative biennium in which the investigation took place. This eradicated the requisite personal interest in the dispute’s resolution that existed at the beginning of 

the litigation.

[9-12] The typical understanding of state legislative bodies 

is that, with the limited exception of valid contractual obligations with third parties,14 pending matters die at the expiration 

of the legislative body’s 2-year term.15 This understanding 

derives from policies dating back to British parliamentary 

function, which disfavored entrenchment and sought to avoid 

the “dead hand problem.”16 Any current legislative body represents the people who elected it and should have power equal to 

13 Nebuda v. Dodge Cty. Sch. Dist. 0062, supra note 10.

14 See State ex rel. Stenberg v. Moore, 249 Neb. 589, 544 N.W.2d 344 

(1996).

15 See Aaron-Andrew P. Bruhl, Burying the “Continuing Body” Theory of 

the Senate, 95 Iowa L. Rev. 1401 (2010).

16 Id. at 1428. See, McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct. 319, 71 

L. Ed. 580 (1927); Thomas Jefferson, A Manual of Parliamentary Practice 

for the Use of the Senate of the United States (1801).
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its predecessor.17 The will of the past electorate should not control the future electorate and its representatives.18 Recognizing 

these principles, we held in State ex rel. Stenberg v. Moore19

that a past legislature impermissibly bound future legislatures 

by passing a law declaring null and void certain future legislation in the event it failed to include specified estimates and 

appropriations. “‘The authority of a legislature,’” we observed, 

“‘is limited to the period of its own existence.’”20 We held that 

the law in question violated Neb. Const. art. III, §§ 1, 13, and 

14, because it attempted to restrict the constitutional power of 

a succeeding legislature to legislate.21

[13] An investigatory committee, “being the mere agency 

of the body which appointed it, dies when the body itself 

dies, unless it is continued by law.”22 In such circumstances, 

an outstanding subpoena to attend an investigatory hearing 

by the committee also dies. It is a pending matter that dies 

at the expiration of the legislative body’s 2-year term. Thus, 

in Eastland v. United States Servicemen’s Fund,

23 the U.S. 

Supreme Court indicated that an action to enjoin enforcement 

of the investigatory subpoena issued by the U.S. House of 

Representatives had automatically expired during the pendency of the litigation, due to the cessation of the legislative 

term in which an investigatory subpoena had been issued. 

In subsequent cases, the U.S. District Court for the District 

of Columbia has explicitly held that subpoenas issued by 

an investigatory committee of the House of Representatives 

17 See Bruhl, supra note 15.

18 See id.

19 State ex rel. Stenberg v. Moore, supra note 14.

20 Id. at 594, 544 N.W.2d at 348, quoting Frost v. State, 172 N.W.2d 575 

(Iowa 1969).

21 State ex rel. Stenberg v. Moore, supra note 14.

22 Tipton v. Parker, 71 Ark. 193, 196, 74 S.W. 298, 299 (1903).

23 Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 95 S. Ct. 

1813, 44 L. Ed. 2d 324 (1975).
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during one term expire upon a new term, because the prior 

House of Representatives has at that point ceased to exist as a 

legal entity.24 This, in turn, renders moot any litigation seeking 

to avoid or enforce compliance with the subpoena.25 This is 

analogous to federal decisions holding that with the expiration of a grand jury, so too expires the ability of the court 

to enforce a grand jury subpoena, rendering moot challenges 

relating to the subpoena.26

The only state cases addressing the continued life of an 

investigatory committee focus on the power of a committee 

to act after adjournment sine die, as opposed to the end of a 

term, but those courts hold that committees have the authority 

to do so only when it is specifically conferred.27 State courts 

have not had occasion to address whether investigatory subpoenas automatically expire between legislative terms. At least 

one state decision has, however, held that subpoenas issued 

by standing committees of municipal councils automatically 

expire by reason of new elections.28

[14] The general rule is that the period of legislative existence is its 2-year term, and committee investigations and 

attendant subpoenas automatically expire upon the expiration of that term. It is true that the U.S. Senate, as opposed 

to the House of Representatives, has been characterized as 

a “‘continuing body.’”29 This is by virtue of the fact that its 

24 See, Committee on Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008); 

United States v. American Tel. & Tel. Co., 551 F.2d 384 (D.C. Cir. 1976).

25 See id.

26 See, In re Grand Jury Proceedings, 744 F.3d 211 (1st Cir. 2014); Loubriel 

v. United States, 9 F.2d 807 (2d Cir. 1926); United States v. Collins, 146 F. 

553 (D. Or. 1906).

27 See 1 Norman J. Singer and J.D. Shambie Singer, Sutherland Statutory 

Construction § 12:17 (7th ed. 2010). See, also, Tipton v. Parker, supra note 

22; Brown et al., Aplnts. v. Brancato et al., 321 Pa. 54, 184 A. 89 (1936).

28 See Balt. v. Comm. on Legislative Invest., 341 Md. 23, 668 A.2d 33 

(1995).

29 McGrain v. Daugherty, supra note 16, 273 U.S. at 181.
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members are elected for 6 years and so divided into classes 

that the seats of only one-third become vacant at the end of 

each Congress, with two-thirds (or a quorum) always continuing into the next Congress, save as vacancies may occur 

through death or resignation.30 Further, the Senate, unlike the 

House of Representatives, does not adopt new procedural rules 

or readopt the old procedural rules upon each new term; the 

old rules of the Senate remain in effect and are revised only 

on rare occasion.31 But even with such continuing existence, it 

is not entirely clear that Senate investigatory subpoenas automatically continue to be enforceable after the Senate’s term 

has ended, without reissuance or other affirmative acts by the 

senators holding office in the new term.32 It has been held that 

even the Senate cannot exercise its inherent contempt powers 

to enforce an investigatory subpoena after adjournment sine 

die—let alone after expiration of its term.33

[15,16] In any event, no state legislative body has been 

similarly described as a “continuing body.” We hold that the 

Nebraska Unicameral Legislature, while unique because it is 

not a bicameral system, is likewise not a “continuing body.” 

The Nebraska Constitution is not a grant, but, rather, is a 

restriction on the legislative power 34 in light of the otherwise 

“plenary power of the people of each state to do as they will.”35

The constitutional provisions restricting the power of the legislature describe 2-year biennium terms that begin with oddnumbered years and end with the following even-numbered 

30 See id.

31 Bruhl, supra note 15.

32 See, Eastland v. United States Servicemen’s Fund, supra note 23; Bruhl, 

supra note 15. See, also, Marshall v. Gordon, 243 U.S. 521, 37 S. Ct. 448, 

61 L. Ed. 881 (1917); United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970). 

But see 28 U.S.C. § 1365 (2012).

33 See United States v. Fort, supra note 32. But see 28 U.S.C. § 1365.

34 State ex rel. Stenberg v. Moore, supra note 14.

35 16 Am. Jur. 2d Constitutional Law § 42 at 384 (2009).
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year. Neb. Const. art. III, § 10, describes the length of legislative sessions in odd versus even-numbered years and states 

that only in an odd-numbered year may “[b]ills and resolutions under consideration by the Legislature upon adjournment 

. . . be considered at the next regular session, as if there had 

been no such adjournment.” There is no analogous constitutional provision for the U.S. Senate. Furthermore, approximately one-half of the members of the Nebraska Unicameral 

Legislature are subject to staggered elections for their 4-year 

terms,36 not the mere one-third of the U.S. Senate. And the 

existence of staggered elective terms, which seems to be the 

only basis for equating our Legislature to the U.S. Senate, is a 

relatively new phenomenon. In the bicameral era, members of 

the Legislature, including both the House of Representatives 

and the Senate, were elected for terms consisting of only 2 

years.37 At the inception of the unicameral era, the members 

of the new one-house Legislature were elected only for 2-year 

terms.38 This continued, despite an intervening constitutional 

amendment,39 until the voters adopted an amendment for staggered 4-year terms in 1962.40 The parties have not pointed to, 

nor has our research disclosed, any legislative text or history 

from 1962 stating any intent to make the Nebraska Legislature 

a “continuing body.” 41 Finally, unlike in the Senate, all procedural rules of the Nebraska Unicameral Legislature are 

adopted by a majority vote at the “commencement of each 

regular session in odd-numbered years,” and the adopted rules 

“govern the Legislature for a period of two years.” 42 This 

36 See, Neb. Const. art. III, § 7; Neb. Rev. Stat. § 32-508 (Reissue 2016).

37 See, Neb. Const. art. II, § 4 (1875); Neb. Const. art. III, § 7 (1920).

38 See Neb. Const. art. III, § 7 (1935).

39 See id. (1961).

40 See id. (1963).

41 See 1961 Neb. Laws, ch. 247, § 1, p. 733.

42 Rule 2, § 1(a), Nebraska Unicameral Legislature, 106th Leg., 1st Sess. 9 

(2019). See, also, id., 105th Leg., 2d Sess. 9 (2018).
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demonstrates the Legislature’s collective understanding that 

it is not a “continuing body,” but, rather, is a new Legislature 

established at the regular legislative session commencing in 

each odd-numbered year. Obviously, that session would next 

follow the general election in each even-numbered year, at 

which a new term begins for approximately one-half of its 

members. The Legislature itself numbers its sessions consistent with that understanding.

[17,18] Because the Nebraska Legislature is not a “continuing body,” a particular legislature’s biennium period of existence ceases at the end its biennium term. Like other pending 

matters, committee investigations and attendant subpoenas are 

presumed to cease to exist at the end of the term in which they 

commenced. The committee investigation dies when the body 

dies, unless it is continued by a valid law.

[19] And there is no applicable statute or legislative rule 

providing for the continuing viability of pending subpoenas 

issued by an investigatory committee of a prior biennium 

term. We need not decide whether such a statute or rule, if it 

existed, would be an impermissible restriction on future legislatures, like the statute addressed in State ex rel. Stenberg v. 

Moore.

43 The applicable statutes and procedural rules of the 

105th Legislature contemplated the expiration of investigatory committees at the end of each biennium term and, by 

necessary implication, the expiration of the expired committees’ pending hearings and attendant subpoenas. Neb. Rev. 

Stat. § 50-410 (Reissue 2010), describes that the Legislative 

Council “shall meet at least once in each biennium.” Rule 

3, § 2(c), provided that the membership of all standing and 

select committees shall continue only during the duration of 

the biennium. Under this rule, new membership of committees was to be appointed at the beginning of each session 

beginning in odd-numbered years and continue only until the 

regular session in the next subsequent odd-numbered year. 

43 State ex rel. Stenberg v. Moore, supra note 14.
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Similarly, at the commencement of each regular session in 

odd-numbered years, new members of the executive board 

were to be elected.44

While rule 3, § 1(b), described the power of committees to 

sit and act during session, recesses, and adjourned periods, and 

it stated that committees had “jurisdiction” “until final report,” 

it did not purport to address a new biennium legislative term 

and the survivability of subpoenas beyond the commencement 

of the odd-numbered year during which the committee will 

be reconstituted with new members. Further, rule 3, § 1(c), 

explained that “[n]o committee may exercise any of the above 

mentioned powers in a manner contrary to the Rules of the 

Legislature or in a manner which exceeds the scope of the act 

defining the purpose of the committee.”

Thus, the Judiciary Committee’s investigation at issue in 

this appeal automatically expired with the expiration of the 

Legislature in which it had begun, and the subpoena that 

was the subject of the district court’s order presently appealed 

from died with it. While it might be argued under different 

circumstances that a failure to appear, as subpoenaed, at a 

past legislature’s investigatory hearing is a historical fact 

subjecting the witness to contempt even after a new legislature commences, that did not occur here. The scheduled 

hearing was never held. Because the subpoena has expired 

and the hearing was never held, no real controversy presently exists regarding the subpoena’s enforceability against 

Frakes.

As the enforceability against Frakes was the only issue 

determined in the court’s order quashing the subpoena pursuant to § 50-406, the court’s order in that regard is moot. It 

follows that no real controversy presently exists concerning 

the Senators’ immunity defenses to Frakes’ challenges under 

§ 50-406 to the subpoena’s enforceability, and the district 

court’s order denying the Senators’ motion to dismiss Frakes’ 

44 Rule 1, § 1.
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challenges under § 50-406 are likewise moot.45 We do not 

consider to be presently before us in this interlocutory appeal 

the court’s ruling on the Senators’ motion to dismiss as it pertained to other claims brought by the Department outside of 

§ 50-406 and, thus, outside of a special proceeding.46 Those 

claims appear to still be pending below, and the Department 

is free to voluntarily dismiss those claims or either party 

may request a ruling by the district court that the claims 

are moot.

[20,21] Under certain circumstances, an appellate court 

may entertain the issues presented by a moot case when the 

claims presented involve a matter of great public interest or 

when other rights or liabilities may be affected by the case’s 

determination.47 In determining whether the public interest 

exception should be invoked, the court considers the public 

or private nature of the question presented, the desirability 

of an authoritative adjudication for future guidance of public 

officials, and the likelihood of future recurrence of the same 

or a similar problem.48 While this case involves questions of 

a public nature, it is not at all clear that the same or a similar 

problem is likely to recur and, relatedly, that there is a need 

to provide future guidance for public officials. Indeed, in the 

event that the Judiciary Committee of the current or future 

bienniums were to similarly issue a similar subpoena, the 

statutes and rules governing the issuance, enforcement, and 

resistance to investigatory subpoenas may have changed. We 

will not issue an opinion on a hypothetical set of facts that are 

unlikely to recur.

45 See, Alabama v. North Carolina, 560 U.S. 330, 130 S. Ct. 2295, 176 L. 

Ed. 2d 1070 (2010); Pennsylvania v. Lockheed Martin Corp., 681 F.3d 503 

(3d Cir. 2012).

46 See, Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017); State v. 

Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005); Neb. Rev. Stat. §§ 25-1301 

(Cum. Supp. 2018) and 25-1911 and 25-1902 (Reissue 2016).

47 Weatherly v. Cochran, supra note 6.

48 Id.
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VI. CONCLUSION

Because the Nebraska Legislature, like most state legislative entities, is not a continuing body, the subpoenas at issue 

expired at the commencement of the 106th Legislature. Even 

if we were to agree with the Senators’ legal position, we could 

not grant the relief they seek. This prevents this court from 

reaching the substantive issues raised by the parties.

We therefore dismiss the appeal as moot. We also dismiss 

as moot the Department’s appellate motion to substitute the 

named senators who are no longer in office with their successors in the 106th Nebraska Legislature, which motion the 

Department explained “should not be construed as conceding 

any issue pertaining to the continued justiciability of this case 

on mootness or any other basis.” The Department is free to 

make such motion below if it wishes to still pursue any claims 

set forth in the complaint outside of § 50-406.

 Appeal and motion to substi

parties dismissed.

Miller‐Lerman, J., concurr

I concur in the per curiam decision, but write separately to 

address the timing of a future similar case, if any.

Among the features of Nebraska’s unique Unicameral system is the fact that the Legislature reconstitutes itself every 2 

years. The Nebraska Legislature is not a continuing body. As a 

result, the subpoena issued by the 105th Legislature ceased to 

be a demand of the Legislature and issues related to its issuance became moot.

This circumstance leaves unanswered the underlying substantive issues identified in the per curiam opinion including: 

whether the Nebraska Department of Correctional Services’ 

rules and regulations outlining the protocol for execution of 

the death penalty, and the process by which the protocol was 

adopted, were constitutional and consistent with Nebraska statutes; whether delegation of development of the death penalty 

protocol to the executive branch would benefit from more 
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strict legislative boundaries; whether the department followed 

applicable state and federal law in selecting the substances for 

lethal injection; and whether notices and public access to various documents were consistent with Nebraska statutes.

The foregoing issues could be addressed by a similar subpoena issued by the 106th Legislature timed in a manner which 

would forestall mootness. Were the current or future Legislatures 

to act earlier in the biennium, a court challenge, if any, could 

mature and the Judiciary at all levels would be obligated to 

advance consideration of the case.