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SANDOVAL v. RICKETTS

Cite as 302 Neb. 138

Jose Sandoval et al., appellants and cross-appell

v. John Peter Ricketts, Governor of the

of Nebraska, et al., appellees, Don Stenb

Nebraska State Treasurer, et al., appelle

and cross-appellants, and Arthur L.

et al., appellees and cross-appellee

___ N.W.2d ___

Filed January 25, 2019. No. S-18-390.

1. Judgments: Jurisdiction: Appeal and Error. Determination of a jurisdictional issue which does not involve a factual dispute is a matter of 

law which requires an appellate court to reach its conclusions independent from a trial court.

2. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court 

reviews a district court’s order granting a motion to dismiss de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

3. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the appeal.

4. Declaratory Judgments. An action for a declaratory judgment will not 

lie where another equally serviceable remedy is available.

Appeal from the District Court for Lancaster County: Joh

A. Colborn, Judge. Affirme

Brian William Stull, of American Civil Liberties Union 

Foundation, Amy A. Miller, of American Civil Liberties Union 

of Nebraska Foundation, Christopher L. Eickholt, of Eickholt 

Law, L.L.C., and Brett J. Williamson, Luann Simmons, and 

Bill Trac, of O’Melveny & Myers, L.L.P., for appellants.

Nebraska Supreme Court Online Library

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

03/15/2019 12:07 AM CDT
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Cite as 302 Neb. 138

Douglas J. Peterson, Attorney General, and Ryan S. Post for 

appellees John Peter Ricketts et al.

Bartholomew L. McLeay, of Kutak Rock, L.L.P., for appellee John Peter Ricketts in his individual capacity.

J.L. Spray and Christina L. Usher, of Mattson Ricketts Law 

Firm, and Ryan K. McIntosh, of Brandt, Horan, Hallstrom & 

Sedlacek, for appellees Don Stenberg et al.

Tracy Hightower-Henne, of Hightower Reff Law, and Kevin 

Barry, of Quinnipiac University School of Law Legal Clinic, 

for amici curiae Legal Scholars.

Heavican, C.J., Cassel, Stacy, Funke, and Papik, 

Pirtle and Riedmann, Jud

Heavican, C

INTRODUCTION

Plaintiffs are eight death row inmates. The inmates filed 

suit seeking a declaratory judgment that 2015 Neb. Laws, L.B. 

268, which abolished the death penalty in Nebraska, was not 

repealed by referendum. The inmates further sought injunctive 

relief preventing the Department of Correctional Services and 

its director, Scott R. Frakes, from carrying out executions or 

steps toward execution against any plaintiffs or indispensable 

parties. The Lancaster County District Court dismissed the 

complaint for failure to state a claim. The inmates appeal. We 

affirm the district court’s dismissal.

BACKGROUND

Plaintiffs in this case are Jose Sandoval, Roy L. Ellis, Jorge 

Galindo, Nikko Jenkins, John L. Lotter, Raymond Mata, Marco 

E. Torres, and Eric F. Vela (the inmates). Indispensable parties 

are Arthur L. Gales, Jeffrey Hessler, and Carey Dean Moore. 

The inmates and indispensable parties were all convicted of 

first degree murder and sentenced to death. Since the filing of 

the complaint, Moore has been executed.
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Cite as 302 Neb. 138

The Nebraska Legislature passed L.B. 268 over the veto of 

Governor John Peter Ricketts on May 27, 2015. L.B. 268 abolished the death penalty in Nebraska. The Legislature adjourned 

on May 29; under Neb. Const. art. III, § 27, L.B. 268 would 

take effect on August 30.

Following the passage of L.B. 268, opponents of the bill 

organized as “Nebraskans for the Death Penalty, Inc.,” and, on 

June 1, 2015, filed documents with the Nebraska Secretary of 

State seeking a referendum to repeal L.B. 268. On August 26, 

the opponents so organized filed with the Secretary of State 

petitions purporting to include the signatures of approximately 

166,000 Nebraskans in support of the referendum. On October 

16, the Secretary of State’s office announced that verification 

of those signatures was complete and that enough signatures 

(in this case 143,000) had been verified to suspend the operation of L.B. 268. During the November 8 election, a vote was 

held on the referendum. The referendum passed, and L.B. 268 

was repealed.

The complaint in this case was filed on December 4, 2017, 

and seeks declaratory and injunctive relief. Defendants in this 

action are Ricketts (in both his individual and official capacities), State Treasurer Don Stenberg (in both his individual and 

official capacities), Attorney General Doug Peterson (in only 

his official capacity), Frakes (in only his official capacity), 

Judy Glassburner, Aimee Melton, and Bob Evnen.

Count I seeks a declaratory judgment that the referendum 

was not legally sufficient or effective because members of the 

executive branch, including Ricketts and Stenberg, proposed, 

initiated, financed, organized, managed, and directed the process, in violation of the Nebraska Constitution’s separation of 

powers provision.

Count II seeks a declaratory judgment that the referendum 

against L.B. 268 failed for lack of a sworn statement from the 

sponsors stating that the list of identified sponsors was truthful and accurate.
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Cite as 302 Neb. 138

Count III seeks a declaratory judgment that the punishments 

for the inmates and the indispensable parties (except Jenkins, 

who was not sentenced to death as of May 30, 2017) were, by 

operation of law, converted into sentences of life imprisonment 

on August 30, 2015, and that the August 26 filing of unverified 

signatures did not suspend the effect of L.B. 268. Moreover, 

the October 15 announcement that sufficient signatures had 

been verified did not reinstate the death penalty for those individuals whose penalties had been changed to life imprisonment 

on August 30.

Defendants filed motions to dismiss, which were granted by 

the district court. The court reasoned that (1) the inmates had 

equally serviceable remedies, (2) the inmates failed to state 

a claim that Ricketts or Stenberg violated the separation of 

powers doctrine, (3) L.B. 268 never took effect, and (4) the 

Legislature lacked the power to modify the inmates’ sentences.

The inmates appeal.

ASSIGNMENTS OF ERROR

The inmates assign, renumbered and restated, that the district 

court erred in finding that (1) the inmates had other serviceable 

remedies; (2) L.B. 268 was suspended on August 26, 2015, 

upon the filing of unverified signatures; (3) the Legislature 

was without the power to modify the inmates’ sentences from 

death to life imprisonment; and (4) the inmates failed to state 

a cause of action under the separation of powers provisions of 

the Nebraska Constitution, and by failing to allow the inmates 

to amend their pleading to state a claim.

On cross-appeal, defendants Stenberg, Glassburner, Melton, 

and Evnen assign that the district court erred in not finding 

they were misjoined parties and not accordingly dismissing 

them from the action.

STANDARD OF REVIEW

[1] Determination of a jurisdictional issue which does not 

involve a factual dispute is a matter of law which requires an 
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appellate court to reach its conclusions independent from a 

trial court.1

[2] An appellate court reviews a district court’s order granting a motion to dismiss de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party.2

ANALYSIS

Subject Matter Jurisdiction.

[3] Before reaching the legal issues presented for review, it 

is the duty of an appellate court to determine whether it has 

jurisdiction over the appeal.3 In this case, defendants sought 

dismissal on the basis of the district court’s jurisdiction. The 

district court implicitly rejected this argument, and defendants 

again raise it here. They argued that the inmates

filed a civil declaratory judgment action to collaterally 

attack their final death penalty sentences ordered by other 

district courts who had jurisdiction over [the inmates] 

and their crimes, which sentences were final after having 

been affirmed on appeal by the Nebraska Supreme Court. 

In short, [the inmates] filed the wrong procedure in the 

wrong court against the wrong defendants to obtain the 

remedy of having their death penalty sentences vacated 

and enjoined from being carried out.4

We disagree. Plainly, a district court has jurisdiction to hear 

and decide a declaratory judgment action.5 But defendants’ 

argument regarding jurisdiction certainly touches on the allegations made by the inmates and whether those allegations stated 

1 State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018).

2 Chafin v. Wisconsin Province Society of Jesus, 301 Neb. 94, 917 N.W.2d 

821 (2018).

3 State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917 N.W.2d 

903 (2018).

4 Brief for appellees Ricketts et al. at 17.

5 Neb. Rev. Stat. § 25-21,149 (Reissue 2016).
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a claim for which relief could be granted (i.e., the merits of this 

appeal). We now turn to that question.

Equally Serviceable Remedies.

The inmates argue that the district court erred in finding 

they could not maintain a declaratory judgment claim because 

they had other equally serviceable remedies—in their cases, 

postconviction actions arguing that their death sentences were 

void as a result of L.B. 268.

[4] We have held under similar circumstances that an action 

for a declaratory judgment does not lie where another equally 

serviceable remedy is available.6 In Hall v. State, the defendant 

was convicted of second degree murder and sentenced to life 

imprisonment. This court affirmed that conviction and sentence 

and later dismissed an appeal of the denial of the defendant’s 

motion seeking postconviction relief. The defendant then filed 

three motions seeking declaratory judgments and a second 

petition for postconviction relief. In those motions, he sought a 

finding that the second degree murder statute was unconstitutionally vague and overbroad.

We rejected the defendant’s argument that declaratory judgment was an available remedy, observing that he had the 

opportunity to challenge the constitutionality of the relevant 

statutes in the criminal proceedings against him, through his 

direct appeal or a postconviction motion, but failed to do 

so. The defendant’s motions seeking a declaratory judgment 

were a collateral attack on his convictions. We also dismissed 

his postconviction motion seeking similar relief as procedurally barred.

We addressed a similar situation in State v. Dunster.

7

 In 

Dunster, the defendant filed a motion for new trial and a 

motion to vacate his death sentence. He asked us to recognize 

a new procedure for the purpose of challenging a purportedly 

6 Hall v. State, 264 Neb. 151, 646 N.W.2d 572 (2002).

7 State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005).
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void sentence. We declined that invitation, noting that a postconviction motion, properly made, would be available to assert 

that one’s sentence was void.

In this case, the record establishes that Jenkins’ direct appeal 

is pending and that the other inmates have filed motions seeking postconviction relief. Each has raised the assertion that his 

death sentence or sentences are unconstitutional and void under 

L.B. 268. While we decline to hold that a postconviction action 

will always be the correct procedure, it is available here and 

provides all but Jenkins with a remedy which, compared to the 

declaratory judgment sought, is equally serviceable. Jenkins’ 

equally serviceable remedy is his pending direct appeal.

We conclude that the inmates have equally serviceable remedies and accordingly affirm the district court’s dismissal of 

their declaratory judgment action. We need not reach the 

inmates’ remaining assignments of error or the cross-appeal 

filed by Stenberg, Glassburner, Melton, and Evnen.

CONCLUSION

We affirm the decision of the district court dismissing 

the inmates’ suit because other equally serviceable remedies 

were available.

Affirmed

Miller-Lerman and Freudenberg, JJ., not particip