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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

HEIST V. NEBRASKA DEPT. OF CORR. SERVS

Cite as 312 Neb. 480

Robert J. Heist II, appellant, v. Nebraska 

Department of Correctional 

Services et al., appellees.

___ N.W.2d ___

Filed September 23, 2022. No. S-20-813.

1. Summary Judgment: Appeal and Error. An appellate court affirms a 

lower court’s grant of summary judgment if the pleadings and admitted 

evidence show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts and that 

the moving party is entitled to judgment as a matter of law.

2. ____: ____. An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable 

to the nonmoving party and drawing all reasonable inferences in that 

party’s favor.

3. Immunity: Jurisdiction. Sovereign immunity is jurisdictional in nature, 

and courts have a duty to determine whether they have subject matter 

jurisdiction over a matter.

4. Jurisdiction: Statutes. Subject matter jurisdiction and statutory interpretation present questions of law.

5. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

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

which 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 from the lower court’s decision.

7. Sentences: Statutes: Time. The good time law to be applied to a 

defendant’s sentence is the law in effect at the time the defendant’s sentence becomes final.

8. Jurisdiction: Appeal and Error. Where a lower court lacks subject 

matter jurisdiction to adjudicate the merits of a claim, issue, or question, 

an appellate court also lacks the power to determine the merits of the 

claim, issue, or question presented to the lower court.

Nebraska Supreme Court Online Library

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

12/02/2022 09:06 AM CST
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9. Administrative Law: Immunity: Waiver: Jurisdiction: Declaratory 

Judgments. The Administrative Procedure Act provides a limited statutory waiver of the State’s sovereign immunity and confers subject matter 

jurisdiction for a declaratory judgment action seeking a determination 

regarding the validity of a state agency’s rule or regulation.

10. Administrative Law: Words and Phrases. The Administrative 

Procedure Act defines a “rule or regulation” as any standard of general 

application adopted by an agency in accordance with the authority conferred by statute.

11. Administrative law. Under the Administrative Procedure Act, a rule or 

regulation shall not include internal procedural documents which provide guidance to staff on agency organization and operations, lacking 

the force of law, and not relied upon to bind the public.

12. Administrative Law: Jurisdiction: Declaratory Judgments: Statutes.

The Administrative Procedure Act does not confer jurisdiction for 

declaratory relief concerning judicial interpretation of a statute.

13. Declaratory Judgments: Immunity: Waiver. Nebraska’s Uniform 

Declaratory Judgments Act does not waive the State’s sovereign 

immunity.

14. Declaratory Judgments: Public Officers and Employees: Immunity.

A declaratory judgment action against a state officer or agent seeking 

relief from an invalid act or an abuse of authority by an officer or agent 

is not a suit against the State and is therefore not barred by the principles of sovereign immunity.

15. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

16. Statutes: Legislature: Intent. Components of a series or collection of 

statutes pertaining to a certain subject matter are in pari materia and 

should be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

17. ____: ____: ____. In order for a court to inquire into a statute’s legislative history, that statute in question must be open to construction, and a 

statute is open to construction when its terms require interpretation or 

may reasonably be considered ambiguous.

18. Statutes. The statutory canon of expressio unius est exclusio alterius 

recognizes that an expressed object of a statute’s operation excludes the 

statute’s operation on all other objects unmentioned by the statute.
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Cite as 312 Neb. 480

19. Sentences. Where a mandatory minimum sentence is involved, an 

inmate’s parole eligibility date is calculated by subtracting the mandatory minimum sentence from the court’s minimum sentence, halving the 

difference, and adding that difference to the mandatory minimum.

20. Statutes: Legislature: Presumptions: Intent. In construing a statute, 

it is presumed that the Legislature intended a sensible, rather than an 

absurd, result.

21. Statutes. Under the absurd results doctrine, a court may deviate from 

the plain language of the statutory text if application of the plain language would lead to manifest absurdity.

22. ____. The absurd results doctrine does not include substantive errors 

arising from a drafter’s failure to appreciate the effect of certain statutory provisions.

Appeal from the District Court for Lancaster County: John 

A. Colborn, Judge. Affirmed.

Robert J. Heist II, pro se.

Douglas J. Peterson, Attorney General, and Scott R. Straus 

for appellee.

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

and Papik, JJ., and Steinke, District Judge.

Funke, J.

I. INTRODUCTION

Robert J. Heist II, an inmate in the Nebraska Department of 

Correctional Services (DCS) system, appeals the dismissal of 

his petition for declaratory judgment under the Administrative 

Procedure Act (APA) and Nebraska’s Uniform Declaratory 

Judgments Act (UDJA). Heist argues that good time credit 

earned pursuant to Neb. Rev. Stat. § 83-1,107(2)(b) (Cum. 

Supp. 2020) applies to an inmate’s parole eligibility date 

(PED). In affirming the decision of the district court, we conclude that good time earned pursuant to § 83-1,107(2)(b) is 

applicable only to reduce an inmate’s maximum sentence and, 

accordingly, has no applicability to an inmate’s PED.
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HEIST V. NEBRASKA DEPT. OF CORR. SERVS

Cite as 312 Neb. 480

II. BACKGROUND

1. Factual Background

On April 4, 2016, Heist was sentenced to imprisonment 

for a minimum of 11 years (with a mandatory minimum of 3 

years) and a maximum of 25 years in the DCS system for child 

enticement. According to DCS records, Heist’s PED is March 

30, 2023, and DCS’ brief on appeal gives his tentative release 

date (TRD) as February 10, 2030.

Since his incarceration, Heist has been earning good time 

credit under § 83-1,107. It is undisputed that the reductions 

of Heist’s sentence under § 83-1,107 have been, and continue 

to be, deducted from the maximum term of his sentence to 

calculate the date when discharge from state custody becomes 

mandatory. It further appears that, currently, no reductions have 

been applied to Heist’s minimum sentence, mandatory minimum sentence, or PED.

2. DCS Policy 104.08

DCS has adopted “Policy 104.08,” which is titled “Inmate 

Time Calculations and Sentencing.” The stated purpose of 

DCS’ Policy 104.08 is to “outlin[e] methodology for calculating inmate’s sentences.” As to procedures for inmate time 

computations, Policy 104.08 notes that there are seven separate 

Nebraska laws that govern the release of all inmates committed to DCS and explains that “[t]hese statutes, along with the 

opinions of Nebraska courts and the state Attorney General’s 

office, form the basis of all time calculations.” The first 

Nebraska law identified is 2011 Neb. Laws, L.B. 191, which 

Policy 104.08 describes as follows:

A. Effective March 16, 2011, LB 191 amended sections 

83-1,107 and 83-1,108

1. LB 191 added an opportunity [for a committed 

offender] to earn additional good time based on institutional behavior. [DCS] will reduce the term of a committed inmate by three days on the first day of each month, 

following a 12-month period of incarceration within 
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[DCS], during which the inmate has not been found guilty 

of a Class I or Class II offense, or more than three Class 

III offenses under [DCS’] disciplinary code. Reductions 

earned pursuant to LB 191 shall not be subject to forfeit 

or withholding by [DCS].

3. Procedural Facts

Heist filed a petition against DCS, Scott Frakes in his official capacity as DCS director, Mickie Baum in her official 

capacity as DCS records administrator, and Candace Bottorf 

in her official capacity as DCS agency legal counsel (hereinafter collectively DCS) for declaratory judgment under 

the APA and the UDJA. Heist alleged that Policy 104.08 

improperly withholds L.B. 191 good time from PEDs. He 

also argued that Policy 104.08 is a rule or regulation for purposes of the APA and is not authorized by the language of 

§ 83-1,107 and Neb. Rev. Stat. § 83-1,110 (Reissue 2014). 

DCS filed a motion to dismiss which, by agreement and 

notice to both parties, was converted to a motion for summary judgment. Heist subsequently filed a cross-motion for 

summary judgment.

In October 2020, the district court entered an order sustaining DCS’ motion, overruling Heist’s motion, and dismissing 

Heist’s complaint. The court concluded that it lacked jurisdiction over Heist’s APA claim, because Policy 104.08 was not a 

rule or regulation as defined by Neb. Rev. Stat. § 84-901 (Cum. 

Supp. 2020) and the State did not waive its sovereign immunity. The court further concluded that DCS was entitled to 

summary judgment on the UDJA claim, because Policy 104.08 

accurately outlines how sentences are to be calculated pursuant to Nebraska law and Heist’s PED was correctly calculated. 

Heist appeals.

Heist filed a petition to bypass review by the Nebraska 

Court of Appeals, asserting the case involves an issue of first 

impression in Nebraska. We granted the petition to bypass and 

moved the case to our docket.
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HEIST V. NEBRASKA DEPT. OF CORR. SERVS

Cite as 312 Neb. 480

III. ASSIGNMENTS OF ERROR

Heist assigns, restated and consolidated, that the district 

court erred in (1) finding that DCS Policy 104.08 is an internal 

procedural document and thus concluding that it lacked subject 

matter jurisdiction over his APA claim; (2) granting summary 

judgment in favor of DCS on his UDJA claim, when Nebraska 

law requires application of good time credit earned under 

§ 83-1,107(2)(b) to PEDs; and (3) finding that 62 inmates having a PED after their respective TRD, which is colloquially 

referred to as an “inverted sentence,” is not so absurd that the 

Legislature could not have intended § 83-1,107 to be interpreted as applying only to the maximum sentence.

IV. STANDARD OF REVIEW

[1,2] An appellate court affirms a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter 

of law. 1 An appellate court reviews the district court’s grant of 

summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. 2

[3-5] Sovereign immunity is jurisdictional in nature, and 

courts have a duty to determine whether they have subject matter jurisdiction over a matter. 3 Subject matter jurisdiction and 

statutory interpretation present questions of law. 4 An appellate 

court independently reviews questions of law decided by a 

lower court. 5

[6] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of 

1 Lassalle v. State, 307 Neb. 221, 948 N.W.2d 725 (2020).

2 Id.

3 Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 (2019).

4 In re Estate of Brinkman, 308 Neb. 117, 953 N.W.2d 1 (2021).

5 Id.
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law, which requires the appellate court to reach a conclusion 

independent from the lower court’s decision. 6

V. ANALYSIS

[7] As an initial matter, we note that the good time law to be 

applied to a defendant’s sentence is the law in effect at the time 

the defendant’s sentence becomes final. 7 Because Heist was 

sentenced in 2016, L.B. 191 is the applicable law governing 

his sentence. Prior to the enactment of L.B. 191, § 83-1,107 

reduced an inmate’s sentence by 6 months for each year of 

the inmate’s term. L.B. 191 amended § 83-1,107 to allow an 

inmate to earn additional good time at the rate of 3 days per 

month after completion of 1 year of incarceration so long as 

the offender did not commit certain offenses under DCS’ disciplinary code. Section 83-1,107(2) now reads as follows:

(a) [DCS] shall reduce the term of a committed offender 

by six months for each year of the offender’s term and 

pro rata for any part thereof which is less than a year.

(b) In addition to reductions granted in subdivision 

(2)(a) of this section, [DCS] shall reduce the term of a 

committed offender by three days on the first day of each 

month following a twelve-month period of incarceration 

within [DCS] during which the offender has not been 

found guilty of (i) a Class I or Class II offense or (ii) 

more than three Class III offenses under [DCS’] discipli

nary code. Reductions earned under this subdivision shall 

not be subject to forfeit or withholding by [DCS].

(c) The total reductions under this subsection shall be 

credited from the date of sentence, which shall include 

any term of confinement prior to sentence and commitment as provided pursuant to section 83-1,106, and 

shall be deducted from the maximum term, to determine 

the date when discharge from the custody of the state 

becomes mandatory.

6 US Ecology v. State, 258 Neb. 10, 601 N.W.2d 775 (1999).

7 State v. Nollen, 296 Neb. 94, 892 N.W.2d 81 (2017).
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Cite as 312 Neb. 480

L.B. 191 also amended Neb. Rev. Stat. § 83-1,108 (Reissue 

2014) to require that the Board of Parole reduce a parolee’s 

parole term for good conduct while under parole by 10 days 

for each month. Such reduction shall be deducted from the 

maximum term, less good time granted pursuant to § 83-1,107, 

to determine the date when discharge from parole becomes 

mandatory.

As briefly discussed above, DCS inmates may accrue two 

different good time credits under § 83-1,107. However, the 

central issue in this case involves good time credits earned 

pursuant to § 83-1,107(2)(b). As such, we decline to discuss the implications of good time credits earned pursuant to 

§ 83-1,107(2)(a).

1. APA Claim

[8] Before reaching the legal import of § 83-1,107(2)(b) 

and Policy 104.08, it is our duty to determine whether we 

have jurisdiction over this matter. 8 Where a lower court lacks 

subject matter jurisdiction to adjudicate the merits of a claim, 

issue, or question, an appellate court also lacks the power to 

determine the merits of the claim, issue, or question presented 

to the lower court. 9

Heist argues that the district court erred in determining that 

Policy 104.08 is not a rule or regulation and, thus, also in 

determining that it lacked jurisdiction to adjudicate whether 

the policy exceeds DCS’ statutory authority. Specifically, Heist 

maintains Policy 104.08 is a rule or regulation because it 

prescribes penalties, affects private rights, and sets its own 

standards for calculating good time. He also maintains it has 

the force of law, as shown by DCS’ “[p]ast practice” in releasing approximately 300 inmates prematurely. 10 DCS disagrees, 

arguing that Policy 104.08 is an internal procedural document 

8 See Butler Cty. Landfill v. Butler Cty. Bd. of Supervisors, 299 Neb. 422, 

908 N.W.2d 661 (2018).

9 Id.

10 Brief for appellant at 11.
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that repeats the relevant statutory language about calculating 

inmate sentences “nearly verbatim,” rather than sets its own 

standards. 11 DCS also asserts that any past misapplication of 

good time does not establish the policy has the force of law.

We find no error in the district court’s determination that 

Policy 104.08 is not a rule or regulation and hold that we, like 

the district court, lack subject matter jurisdiction to consider 

Heist’s APA claims.

[9-11] This court has repeatedly recognized that under Neb. 

Rev. Stat. § 84-911 (Reissue 2014), the APA provides a limited 

statutory waiver of the State’s sovereign immunity and confers 

subject matter jurisdiction for a declaratory judgment action 

seeking a determination regarding the validity of a state agency’s rule or regulation. 12 This waiver applies only to a “rule 

or regulation,” which the APA defines to mean “any standard 

of general application adopted by an agency in accordance 

with the authority conferred by statute.” 13 The APA further 

provides that the term “rule or regulation” shall not include 

“internal procedural documents which provide guidance to 

staff on agency organization and operations, lacking the force 

of law, and not relied upon to bind the public.” 14 However, it 

also provides that “every standard which prescribes a penalty 

shall be presumed to have general applicability and any standard affecting private rights, private interests, or procedures 

available to the public is presumed to be relied upon to bind 

the public.” 15

Specifically, Heist asserts that language in sections I.B.3, 

I.D.3, I.E.3, I.F.5, I.G.3, and I.H.5 of Policy 104.08, calling for 

good time reductions to be forfeited or withheld for misconduct, prescribes penalties, and as such, he maintains that Policy 

104.08 is a rule or regulation. He similarly maintains that 

11 Brief for appellees at 11.

12 See Engler v. State, 283 Neb. 985, 814 N.W.2d 387 (2012).

13 § 84-901(2).

14 Id.

15 Id.
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language in sections I.A.1, I.F.6, I.G.3, and I.H.5, regarding 

how good time can be earned and how lost good time can be 

restored, affects private rights and, as such, means that Policy 

104.08 must be a rule or regulation and cannot be an internal 

procedural document.

Of the various sections of Policy 104.08 cited by Heist, 

however, only section I.A.1 involves L.B. 191 good time. The 

other sections pertain to good time under earlier statutes whose 

application Heist does not challenge. As such, we focus our 

discussion on section I.A.1.

Section I.A.1 essentially restates § 83-1,107(2)(b) when it 

calls for inmates’ terms to be reduced by 3 days on the first 

day of each month, following a 12-month period of incarceration within DCS, during which the inmate has not been found 

guilty of a Class I or II offense, or more than three Class III 

offenses, under DCS’ disciplinary code, and provides that any 

such good time shall not be subject to forfeiture or withholding 

by DCS. The only differences between the policy here and the 

statute are immaterial; for example, section I.A.1 uses “NDCS” 

and “will,” while the statute uses “the department” and “shall.” 

Aside from these minute differences, DCS neither added anything to nor removed anything from the statutory language 

when restating it in the policy. As such, the purported penalties 

and provisions affecting private rights that Heist points to do 

not mean that Policy 104.08 is a rule or regulation. In fact, to 

the contrary, they indicate that Policy 104.08 is a prototypical 

internal procedural document insofar as it provides guidance to 

staff by summarizing the seven statutes relevant to the release 

of all DCS inmates and explaining their effect.

[12] Allowing Heist to challenge Policy 104.08 under the 

APA simply because it restates statutory language that could be 

seen to prescribe penalties or affect private rights would negate 

our holding in Perryman v. Nebraska Dept. of Corr. Servs. 16

16 Perryman v. Nebraska Dept. of Corr. Servs., 253 Neb. 66, 568 N.W.2d 241 

(1997), disapproved on other grounds, Johnson v. Clarke, 258 Neb. 316, 

603 N.W.2d 373 (1999).
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The plaintiff in Perryman was an inmate whom DCS initially 

credited with good time when computing his PED and TRD, 

even though he was sentenced to a mandatory minimum 

term. 17 However, DCS later revoked these credits after the 

Nebraska Attorney General indicated that DCS’ practice was 

contrary to the governing statute. 18 The plaintiff sued, seeking a judicial determination as to whether DCS could take 

this action based on the Attorney General’s memorandum. 

However, the district court found it lacked jurisdiction under 

the APA, because “‘the conflict is simply one of statutory 

interpretation.’” 19 We affirmed, noting that the memorandum “involve[d] a matter of statutory interpretation” and that 

§ 84-911’s limited waiver of sovereign immunity “does not 

confer jurisdiction for declaratory relief concerning judicial 

interpretation of a statute.” 20

Heist attempts to distinguish his case from Perryman by 

arguing that Policy 104.08 is not a memorandum, applies to 

all inmates, “does prescribe a penalty,” and exceeds the DCS’ 

statutory authority. 21 However, these arguments are unavailing. Nothing in the APA’s definition of “rule or regulation” 

suggests that a document’s denomination as a “policy” or 

“memorandum” is dispositive. The same is true as to whether 

the document affects all inmates or a subset of inmates. 

Moreover, as we have already noted, the policy merely restates 

good time calculations set forth in the statute; it does not prescribe a penalty. Further, the question of whether the policy 

exceeds DCS’ statutory authority is an argument on the merits 

which cannot be reached under Heist’s APA claim, because 

we lack subject matter jurisdiction. Thus, we agree with the 

district court and conclude that Policy 104.08 is not a rule or 

17 Id.

18 Id.

19 Id. at 69, 568 N.W.2d at 244.

20 Id. at 70, 568 N.W.2d at 245.

21 Brief for appellant at 12.
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regulation, because it merely recites Nebraska statute. The 

limited waiver of sovereign immunity does not confer jurisdiction for declaratory relief concerning judicial interpretation 

of a statute. Accordingly, the district court correctly found 

that it lacked subject matter jurisdiction under the APA in 

Heist’s petition against DCS, because the State did not waive 

its sovereign immunity.

2. UDJA Claim

Heist also argues that the district court erred in granting summary judgment in favor of DCS on his UDJA claim, 

because Nebraska law requires that good time credit earned 

under § 83-1,107(2)(b) apply to PEDs. DCS counters that the 

plain language of § 83-1,107(2)(c) clearly indicates that good 

time earned under § 83-1,107(2)(b) is only to be deducted from 

an inmate’s maximum term to determine when discharge from 

state custody becomes mandatory.

[13,14] As an initial matter, we note that although the UDJA 

itself does not waive the State’s sovereign immunity, a declaratory judgment action against a state officer or agent seeking 

relief from an invalid act or an abuse of authority by an officer or agent is not a suit against the State and is therefore not 

barred by the principles of sovereign immunity. 22 Heist’s petition for declaratory relief named, in addition to DCS, Frakes, 

Baum, and Bottorf in their official capacities as respondents, 

and asserted that each was improperly “withholding the good 

time implemented by LB 191 . . . by applying LB 191 Good 

Time only to [TRDs] and not to [PEDs].” As such, like the 

district court, we have jurisdiction to consider the merits of 

Heist’s UDJA claim, which he brought as an alternative to his 

APA claim. However, upon consideration of this claim, we find 

no error by the district court.

22 See, Logan v. Department of Corr. Servs., 254 Neb. 646, 578 N.W.2d 

44 (1998); County of Lancaster v. State, 247 Neb. 723, 529 N.W.2d 791 

(1995). See, also, Burke, supra note 3.
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(a) § 83-1,107

[15,16] In considering the parties’ arguments concerning 

the interpretation of § 83-1,107, we apply our familiar principles of statutory interpretation, which we briefly review 

here. Two basic principles of statutory interpretation control. 23

First, statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are 

plain, direct, and unambiguous. 24 Second, components of a 

series or collection of statutes pertaining to a certain subject 

matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, 

so that different provisions are consistent, harmonious, and 

sensible. 25

[17] Ordinarily, we look no further than the text. 26 In order 

for a court to inquire into a statute’s legislative history, that 

statute in question must be open to construction, and a statute 

is open to construction when its terms require interpretation or 

may reasonably be considered ambiguous. 27

Here, like the district court, we find that § 83-1,107 unambiguously provides that good time reductions are deducted 

from the maximum term. Subsection (2)(c) of § 83-1,107 specifically states:

The total reductions under this subsection shall be credited from the date of sentence, which shall include any 

term of confinement prior to sentence and commitment 

as provided pursuant to section 83-1,106, and shall be 

deducted from the maximum term, to determine the date 

when discharge from the custody of the state becomes 

mandatory.

23 State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).

24 Id.

25 Id.

26 Id.

27 Id.
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(Emphasis supplied.) Admittedly, subsection (2)(c) does not 

expressly state that good time shall only be deducted from the 

maximum term, and subsection (2)(b) uses the word “term”—

rather than “maximum term”—when discussing how L.B. 191 

good time may be accrued. However, contrary to Heist’s suggestion, neither factor renders § 83-1,107 ambiguous.

Subsection (2)(c) of § 83-1,107 plainly states that the total 

reductions shall be deducted from the maximum term. It does 

not state reductions should be made from the minimum term 

or the mandatory minimum term, which is tantamount to saying that the reductions shall be from only the maximum term. 

Moreover, subsection (2)(c) expressly states that it applies to 

all “reductions under this subsection,” including those under 

subsection (2)(b).

[18] The district court buttressed its conclusion regarding 

the plain meaning of § 83-1,107 by referencing the statutory 

canon of expressio unius est exclusio alterius, which recognizes that “an expressed object of a statute’s operation excludes 

the statute’s operation on all other objects unmentioned by 

the statute.” 28 Specifically, it noted that § 83-1,107(2)(c)’s 

provisions for deductions from the maximum term necessarily 

excludes § 83-1,107(2)(b) from operating on an inmate’s minimum term and, by extension, PED.

Heist maintains that this was erroneous and that the district 

court should instead have adopted his interpretation, based 

on the canon of in pari materia. He maintains that the district 

court’s approach “creates conflict” between the various provisions of the Nebraska Treatment and Corrections Act, while his 

approach “harmonizes” them. 29

The district court considered Heist’s proposed interpretation based on in pari materia and properly rejected it. Heist’s 

argument seems to be that because § 83-1,110(1) states that 

“[e]very committed offender shall be eligible for parole when 

28 Pfizer v. Lancaster Cty. Bd. of Equal., 260 Neb. 265, 272, 616 N.W.2d 

326, 335 (2000).

29 Brief for appellant at 17.
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the offender has served one-half the minimum term of his or 

her sentence as provided in sections 83-1,107 and 83-1,108,” 

good time credit accrued under § 83-1,107(2)(b) must be considered when determining PEDs. Heist similarly maintains 

that not counting L.B. 191 good time toward PEDs “creates 

conflict” between §§ 83-1,107 and other provisions of the 

Nebraska Treatment and Corrections Act, specifically Neb. 

Rev. Stat. §§ 83-170(7) and 83-1,109 (Cum. Supp. 2020) 

and 83-1,110.

[19] Heist’s arguments are unpersuasive. Section 83-170(7) 

merely defines “good time” as any reduction of a sentence 

granted pursuant to §§ 83-1,107 and 83-1,108 and makes 

no reference to an inmate’s PED. Section 83-1,109 merely 

requires DCS to manage information relevant to parole eligibility, as well as good time credits, but makes no reference to 

how to calculate an inmate’s PED. 30 Section 83-1,110 specifically provides that where a mandatory minimum sentence is 

involved, as is the case here, an inmate’s PED is calculated 

by subtracting the mandatory minimum sentence from the 

court’s minimum sentence, halving the difference, and adding that difference to the mandatory minimum. 31 Under these 

provisions, good time reductions taken under § 83-1,107(2)(b) 

would not affect an inmate’s PED unless they can be applied 

to an inmate’s minimum or mandatory minimum sentence, 

something which is not possible under the plain meaning 

of § 83-1,107(2)(c), as we have previously discussed. Thus, 

the language of § 83-1,107 can be adequately understood 

when considered in pari materia with other statutes in the 

Nebraska Treatment and Corrections Act. Further, although we 

do not find any conflict between §§ 83-1,107 and 83-1,110, 

we agree with the district court that even if conflict did exist, 

the specific language of § 83-1,107(2)(c) would control over 

the general language of § 83-1,110. To the extent conflict 

30 See, generally, Gray v. Frakes, 311 Neb. 409, 973 N.W.2d 166 (2022).

31 State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved on 

other grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
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exists between two statutes, the specific statute controls over 

the general. 32

Additionally, Heist directs us to Neb. Rev. Stat 

§ 29-2204(6)(a) (Reissue 2016), which requires a court, when 

imposing an indeterminate sentence, to advise the offender of 

the time the offender will serve on his or her minimum term 

before attaining parole eligibility and the time the offender will 

serve on his or her maximum term before attaining mandatory 

release, assuming that no good time for which the offender will 

be eligible is lost. However, Heist’s argument that this statute 

“assume[s] good time is used to calculate parole eligibility” is 

also unpersuasive. 33 Section 29-2204(6)(a) merely requires a 

court to give certain advisements to an offender when imposing 

an indeterminate sentence upon that offender; it neither states 

nor assumes that good time reductions are applicable to an 

inmate’s minimum sentence. Thus, Heist’s assignments of error 

regarding the interpretation of § 83-1,107 are without merit.

Additionally, we acknowledge that Heist urges this court 

to look at the legislative history of L.B. 191 to ascertain the 

Legislature’s intent and that the district court did so. However, 

in order for a court to inquire into a statute’s legislative history, that statute in question must be open to construction, and 

a statute is open to construction when its terms require interpretation or may reasonably be considered ambiguous. 34 As 

discussed above, the language of § 83-1,107 is not ambiguous 

and therefore not open to construction. As such, we decline 

Heist’s invitation to consider the legislative history behind 

L.B. 191.

(b) Nebraska Law

Heist also maintains that the district court erred because 

its interpretation of § 83-1,107 “violates” three of our earlier 

32 State v. Street, 306 Neb. 380, 945 N.W.2d 450 (2020).

33 Brief for appellant at 15.

34 McGuire, supra note 23.
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decisions, “which all state good time reductions are used to 

calculate PEDs.” 35 However, a closer examination of each of 

these decisions reveals otherwise.

Heist first directs us to our decision in Adams v. State.

 36 In 

Adams, a DCS inmate brought a declaratory judgment action 

against the Board of Parole, seeking a determination that 

§ 83-1,110(1) unconstitutionally usurped the board’s authority 

and a declaration that he was eligible for parole. 37 In discussing § 83-1,110(1), we stated, “The Legislature has declared that 

‘[e]very committed offender shall be eligible for parole when 

the offender has served one-half the minimum term of his or 

her sentence . . . ,’ as adjusted for good time.” 38 Heist argues 

that this language indicates this court’s “clear interpretation 

that the one-half reduction to the minimum term is for good 

time.” 39 We disagree.

First, the plain language of § 83-1,110 makes it clear that 

the phrase “one-half the minimum term” refers to the point at 

which an inmate shall be eligible for parole, not to a reduction in an inmate’s minimum sentence. Second, to the extent 

§ 83-1,110 references good time reductions, the plain language 

of the statute states that such reductions are not applicable to 

a sentence imposing a mandatory minimum term, as is the 

case here. Third, and most important, our opinion in Adams 

discussed § 83-1,110(1) under the conditions clause of the 

Nebraska Constitution. A case is not authority for any point not 

necessary to be passed on to decide the case or not specifically 

raised as an issue addressed by the court. 40 In other words, our 

use of the phrase “as adjusted for good time” in Adams is dicta 

and is not to be interpreted as meaning this court has opined 

35 Brief for appellant at 16.

36 Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016).

37 Id.

38 Id. at 618, 879 N.W.2d at 22.

39 Brief for appellant at 14.

40 Mach v. County of Douglas, 259 Neb. 787, 612 N.W.2d 237 (2000).
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that good time reductions apply to an inmate’s minimum sentence or PED.

Heist also argues that the district court erred in its reliance 

on Caton v. State 41 and State v. Castillas 42 to conclude that 

good time reductions are not used to calculate an inmate’s 

PED. We note, however, that the district court only referenced Castillas and Caton to recite how PEDs and TRDs are 

calculated in Nebraska. Additionally, though Heist is correct 

that both cases “deal with calculating mandatory minimums 

. . . and neither addresses [L.B.] 191 good time,” 43 he fails to 

appreciate that those cases did not discuss L.B. 191 good time, 

because the sentences at issue in those cases occurred prior 

to the enactment of L.B. 191. Therefore, L.B. 191 good time 

reductions would not have been available to the petitioners in 

Castillas and Caton, and as such, it was not necessary for us to 

discuss such reductions there.

(c) Impact of § 83-1,107(2)

Heist further argues that the district court erred in finding that § 83-1,107(2) unambiguously provides that L.B. 191 

good time applies only to reductions in the maximum term, 

because this approach results in the “anomalous, unusual, 

or absurd result” of 62 inmates currently having inverted 

sentences. 44 In support of his argument, Heist points to our 

decisions in Castillas and Johnson v. Kenney.

 45 In Castillas,

we recognized that one of the purposes behind § 83-1,107 

was to “ensure that no one would reach mandatory discharge 

before reaching parole eligibility.” 46 Then, in Johnson, we 

explained that it would not serve the legislative intent if a 

41 Caton v. State, 291 Neb. 939, 869 N.W.2d 911 (2015).

42 Castillas, supra note 31.

43 Brief for appellant at 15.

44 Id. at 20.

45 Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002).

46 Castillas, supra note 31, 285 Neb. at 189, 826 N.W.2d at 267.
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defendant could be mandatorily discharged before being eligible for parole. 47

[20,21] In construing a statute, it is presumed that the 

Legislature intended a sensible, rather than an absurd, result. 48

When possible, an appellate court will try to avoid a statutory construction that would lead to an absurd result. 49 Under 

the absurd results doctrine, a court may deviate from the 

plain language of the statutory text if application of the plain 

language would lead to manifest absurdity. 50 In that situation, a court may correct an error in a provision if failing to 

do so would result in a disposition that no reasonable person 

could approve. 51 However, the bar of manifest absurdity is 

not easily cleared, and we have refused to apply the doctrine 

if the result dictated by the plain language is not “‘so absurd 

that the Legislature could not possibly have intended it.’” 52

Additionally, the absurdity must be able to be corrected by 

changing or supplying a particular word or phrase whose 

inclusion or omission was obviously a technical or ministerial error. 53 The doctrine does not justify judicial revision of 

a statute simply to make the statute more reasonable in the 

judges’ view. 54

Though the current version of § 83-1,107(2)(c) makes clear 

that good time is deducted only from the maximum sentence, 

earlier versions of the statute had no such language. In fact, 

prior to 1995, the statute specifically directed that good time 

47 Johnson, supra note 45.

48 State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).

49 Thomas v. Peterson, 307 Neb. 89, 948 N.W.2d 698 (2020).

50 Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020).

51 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of 

Legal Texts 234-39 (2012), citing Cernauskas v. Fletcher, 211 Ark. 678, 

201 S.W.2d 999 (1947).

52 Parks, supra note 50, 307 Neb. at 945, 951 N.W.2d at 518.

53 Scalia & Garner, supra note 51.

54 Id.
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was to be deducted from the minimum term to determine the 

date an inmate was eligible for parole and from the maximum 

term to determine when discharge from the state became mandatory. 55 However, in 1995, the Legislature passed 1995 Neb. 

Laws, L.B. 371, which explicitly removed any reference to 

good time being deducted from an inmate’s minimum sentence, 

as well as any reference to parole. Since 1995, § 83-1,107 has 

been amended on numerous occasions, but the Legislature 

has never again referred to good time being applied to reduce 

an inmate’s minimum sentence. Thus, the omission of those 

phrases from the statute appears intentional and not a technical or ministerial error; and the absurdity Heist complains of 

cannot be corrected by simply supplying the words “minimum 

sentence” or “parole eligibility date” into the language of 

§ 83-1,107.

[22] Further, although L.B. 191 has caused some inmates 

to incur inverted sentences, such result appears to be an unintended consequence of L.B. 191. The absurd results doctrine 

does not include substantive errors arising from a drafter’s 

failure to appreciate the effect of certain statutory provisions. 56

Thus, conceding that the DCS interpretation of § 83-1,107(2), 

of which Heist complains, has produced the allegedly absurd 

result of 62 inmates with inverted sentences, this falls far short 

of meeting the high bar of manifest absurdity.

We are not the only court to take this view. In Chung Fook 

v. White,

 57 the U.S. Supreme Court upheld a provision in the 

Immigration Act of 1917, which exempted wives and children 

of naturalized citizens from mandatory detention upon entering 

the country if they were found to be affected with a contagious 

disease, but made no such provisions for wives and children of 

native-born citizens. In so doing, the Court noted the oddness 

55 See § 83-1,107. See, also, Von Bokelman v. Sigler, 186 Neb. 378, 183 

N.W.2d 267 (1971).

56 See Scalia & Garner, supra note 51.

57 Chung Fook v. White, 264 U.S. 443, 44 S. Ct. 361, 68 L. Ed. 781 (1924).
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of such disparate treatment, insofar as “it cannot be supposed 

that Congress intended to accord to a naturalized citizen a right 

and preference beyond that enjoyed by a native-born citizen.” 58

Nonetheless, it found that because the statute plainly refers to 

only the wives and children of naturalized citizens, it could not 

read the words “native-born citizen” into the statute without 

usurping the legislative function. 59 The Court concluded that 

any remedy lies with Congress, and not the courts, if the statute 

unjustly discriminates against native-born citizens or is cruel or 

inhuman in its results. 60

The U.S. Supreme Court has taken a similar view in other 

decisions, including one decision where it specifically noted 

that laws enacted with good intentions, when put to the test, 

frequently, and to the surprise of the lawmaker, turn out to be 

mischievous, absurd, or otherwise objectionable. 61 But in such 

a case, the remedy lies with the lawmaking authority, and not 

with the courts. 62

Here, L.B. 191 was enacted to allow inmates an opportunity 

to earn additional good time credit. However, the application 

of L.B. 191 has created inverted sentences for some inmates. 

Nevertheless, because § 83-1,107(2)(c) plainly states that good 

time is to be applied to reduce an inmate’s maximum sentence, we cannot interpolate the words “minimum sentence” or 

“parole eligibility date” without usurping the legislative function. As such, the district court did not err in failing to find 

absurdity in the practical effects of L.B. 191.

VI. CONCLUSION

Policy 104.08 is not a rule or regulation for purposes of the 

APA, and thus, the district court and this court lack jurisdiction 

58 Id., 264 U.S. at 445.

59 Id.

60 Chung Fook, supra note 57.

61 Crooks v. Harrelson, 282 U.S. 55, 51 S. Ct. 49, 75 L. Ed. 156 (1930).

62 Id.
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over Heist’s APA claim. Moreover, the plain, direct, and unambiguous language of § 83-1,107 makes it clear that good time 

reductions earned under this section apply to an inmate’s maximum sentence, not to an inmate’s minimum sentence and, thus, 

not to an inmate’s PED. Further, to the extent Heist argues L.B. 

191 has produced an unintended result, the resolution of such 

unintended result is within the province of the Legislature, not 

with this court. Accordingly, Heist’s assignments of error are 

without merit.

Affirmed.

Freudenberg, J., not participating.