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Rev. Stephen C. Griffith and Senat

Chambers, appellants, v. Nebrask

Department of Correcti

Services et al., appellee

___ N.W.2d ___

Filed October 18, 2019. No. S-18-569.

1. Standing: Jurisdiction: Judgments: Appeal and Error. Standing is 

a jurisdictional component of a party’s case, because only a party who 

has standing may invoke the jurisdiction of a court; 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 those of a trial court.

2. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

3. Standing: Jurisdiction. A party must have standing before a court can 

exercise jurisdiction, and either a party or the court can raise a question 

of standing at any time during the proceeding.

4. Standing. Standing relates to a court’s power to address the issues 

presented and serves to identify those disputes which are appropriately 

resolved through the judicial process.

Appeal from the District Court for Lancaster County: Lor

A. Maret, Judge. Affirme

Amy A. Miller, of American Civil Liberties Union of 

Nebraska, Christopher L. Eickholt, of Eickholt Law, L.L.C., 

and David Litterine-Kaufman, Rene Kathawala, and Suzette J. 

Barnes, of Orrick, Herrington & Sutcliffe, L.L.P., for appellants. 

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

for appellees.

Nebraska Supreme Court Online Library

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

10/18/2019 08:07 AM CDT
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Heavican, C.J., Miller-Lerman, Cassel, Stacy, F

Papik, JJ., and Arterburn, Jud

Papik, J

Two Nebraska citizens brought this action alleging that 

the Nebraska Department of Correctional Services (DCS) did 

not comply with statutory and constitutional requirements 

when, in January 2017, it adopted an “Execution Protocol,” 

a regulation setting forth how death sentences are to be carried out. The plaintiffs, proceeding under Neb. Rev. Stat. 

§ 84-911 (Reissue 2014), asked that the Execution Protocol be 

declared void and that DCS and other defendants be enjoined 

from carrying out executions under the Execution Protocol. 

The district court, however, found that the plaintiffs lacked 

standing to bring the action and dismissed it without reaching 

the merits.

On appeal, we reach the same conclusion as the district 

court. The plaintiffs do not face death sentences, and thus the 

Execution Protocol does not impair or threaten to interfere with 

their legal rights. And while we have recognized, under our 

common law of standing, some exceptions to the requirement 

that a plaintiff show a concrete injury to his or her legal rights 

in order to invoke a court’s jurisdiction, we find that those 

exceptions do not apply in an action brought under § 84-911. 

Accordingly, we affirm the district court’s dismissal.

BACKGROUND

Adoption of Execution Protocol.

Plaintiffs are Rev. Stephen C. Griffith and Senator Ernie 

Chambers (hereinafter collectively Plaintiffs). Griffith is a 

retired minister. Chambers is a member of the Nebraska State 

Legislature. Both are Nebraska citizens.

Plaintiffs’ allegations in this case center on DCS’ adoption 

of an Execution Protocol. After the 2016 general election in 

which Nebraska voters, via referendum, repealed a 2015 law 

that abolished the death penalty, DCS sought to make revisions to its Execution Protocol. The Execution Protocol is a 
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regulation that sets forth the process to be followed when carrying out a death sentence. Generally, the Execution Protocol 

provides for how drugs for lethal injection procedures shall be 

obtained, verified, and maintained; notification requirements; 

and the process for carrying out executions. 69 Neb. Admin. 

Code, ch. 11 (2017).

Plaintiffs allege that after DCS announced that it was considering revisions to the Execution Protocol and would be 

holding a public hearing on the proposed revisions, Griffith 

requested information regarding the proposed revisions from 

DCS. Plaintiffs admit that DCS gave Griffith a draft regulation, 

but they contend that he was also entitled to a fiscal impact 

statement and “working copies” of the proposed revisions 

under Neb. Rev. Stat. § 84-907(2) (Reissue 2014) and that DCS 

did not give him these materials.

Both Griffith and Chambers later testified at the public 

hearing on the proposed revisions to the Execution Protocol. 

They assert, however, that they were unable to provide fully 

informed testimony, because Griffith was not given access to 

all the materials to which he was entitled under § 84-907.

Following the public hearing, DCS adopted the Execution 

Protocol.

Plaintiffs’ Lawsuit.

Plaintiffs filed this lawsuit against DCS and the following individuals in their official capacities: Gov. John Peter 

Ricketts, Attorney General Doug Peterson, and DCS director 

Scott Frakes (hereinafter collectively Defendants). In the lawsuit, Plaintiffs contended that the Execution Protocol should be 

declared invalid for two reasons.

First, Plaintiffs contended that because Griffith was not 

given access to all the materials to which he was entitled under 

§ 84-907, the Execution Protocol was adopted without compliance with statutory procedures. Second, and alternatively, 

Plaintiffs alleged that if “[DCS] did not prepare any drafts or 

revisions of the . . . Execution Protocol and did not consult 
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with anyone regarding the [Execution] Protocol,” the adoption 

of the Execution Protocol violated the due process clause of the 

Nebraska State Constitution.

Plaintiffs requested a declaration that the Execution Protocol 

was void. They also asked that Defendants be enjoined from 

carrying out any executions until a new Execution Protocol 

was adopted.

District Court’s Dismissal.

Defendants moved to dismiss on the grounds that the district court lacked subject matter jurisdiction and that Plaintiffs 

failed to state a claim upon which relief can be granted. 

After a hearing, the district court granted Defendants’ motion 

to dismiss.

In a written order, the district court found that Plaintiffs 

lacked standing to pursue the action. The district court found 

that because the Execution Protocol did not affect Plaintiffs’ 

rights, they did not have traditional common-law standing to 

challenge the validity of the regulation. The district court also 

found that Plaintiffs did not fall within any of the exceptions 

to the traditional common-law standing doctrine. It therefore dismissed Plaintiffs’ complaint for lack of subject matter jurisdiction.

Plaintiffs appealed, and we granted their petition to bypass 

the Nebraska Court of Appeals.

ASSIGNMENTS OF ERROR

Plaintiffs assign multiple errors on appeal, but they can 

effectively be condensed into one: that the district court erred 

in finding that they did not have standing.

STANDARD OF REVIEW

[1] Standing is a jurisdictional component of a party’s case, 

because only a party who has standing may invoke the jurisdiction of a court; 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 
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from those of a trial court. Ritchhart v. Daub, 256 Neb. 801, 

594 N.W.2d 288 (1999).

[2] Statutory interpretation is a question of law, which 

an appellate court resolves independently of the trial court. 

DeLima v. Tsevi, 301 Neb. 933, 921 N.W.2d 89 (2018).

ANALYSIS

General Principles Regarding 

Doctrine of Standing.

The district court dismissed Plaintiffs’ lawsuit on the ground 

that they lacked standing. Before turning to Plaintiffs’ contentions that this decision was incorrect, we pause to review some 

basics regarding the doctrine of standing.

[3,4] A party must have standing before a court can exercise 

jurisdiction, and either a party or the court can raise a question of standing at any time during the proceeding. Central 

Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 

788 N.W.2d 252 (2010). Standing relates to a court’s power 

to address the issues presented and serves to identify those 

disputes which are appropriately resolved through the judicial process. See Ritchhart v. Daub, supra. The focus of the 

standing inquiry is not on whether the claim the plaintiff 

advances has merit; it is on whether the plaintiff is the proper 

party to assert the claim. See Heiden v. Norris, 300 Neb. 171, 

912 N.W.2d 758 (2018). Indeed, in considering standing, 

the legal and factual validity of the claim presented must be 

assumed. Id.

While the U.S. Constitution limits the jurisdiction of federal 

courts to certain “[c]ases” and “[c]ontroversies,” U.S. Const. 

art. III, § 2, and federal courts have interpreted that language 

to impose standing requirements for the exercise of federal 

court jurisdiction, see, e.g., West v. Lynch, 845 F.3d 1228 

(D.C. Cir. 2017), the Nebraska Constitution does not contain 

an analogous provision, see Mullendore v. Nuernberger, 230 

Neb. 921, 434 N.W.2d 511 (1989). As we will discuss in more 

detail below, in some cases, the Legislature provides by statute 
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who has standing to pursue relief. See Schauer v. Grooms, 

280 Neb. 426, 786 N.W.2d 909 (2010). In other cases, we rely 

on common-law standards to determine whether a plaintiff 

has standing. See Metropolitan Utilities Dist. v. Twin Platte 

NRD, 250 Neb. 442, 550 N.W.2d 907 (1996) (concluding 

Legislature did not supplant common-law standing doctrine by 

statute). Our common-law standing doctrine, like other doctrines of justiciability, arises “out of prudential considerations 

of the proper role of the judiciary in democratic government.” 

Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 

546, 731 N.W.2d 164, 176 (2007).

Our common-law standing inquiry generally focuses on 

whether the party bringing suit has suffered or will suffer 

an injury in fact. See, e.g., Central Neb. Pub. Power Dist. v. 

North Platte NRD, supra. We have said that such an injury 

must be “concrete in both a qualitative and temporal sense” 

and that it must be “distinct and palpable, as opposed to 

merely abstract.” Id. at 542, 788 N.W.2d at 260. We have 

also phrased the standing inquiry as whether the plaintiff 

demonstrated a “direct injury” as a result of the action or 

anticipated action of the defendant and emphasized that it 

is generally insufficient for a plaintiff to have “merely a 

general interest common to all members of the public.” 

Ritchhart v. Daub, 256 Neb. 801, 806, 594 N.W.2d 288, 292 

(1999). Accordingly, in order to have standing to bring suit to 

restrain an act of a municipal body, the persons seeking such 

action must usually show some injury peculiar to themselves. 

See State ex rel. Reed v. State, 278 Neb. 564, 773 N.W.2d 

349 (2009).

Does § 84-911 Confer Standing 

for “Procedural” Injuries?

Plaintiffs brought this action under § 84-911 and contend 

that they have standing thereunder. Section 84-911, a provision within Nebraska’s Administrative Procedure Act, provides 

as follows:
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(1) The validity of any rule or regulation may be determined upon a petition for a declaratory judgment thereon 

addressed to the district court of Lancaster County if it 

appears that the rule or regulation or its threatened application interferes with or impairs or threatens to interfere 

with or impair the legal rights or privileges of the petitioner. . . .

(2) The court shall declare the rule or regulation invalid 

if it finds that it violates constitutional provisions, exceeds 

the statutory authority of the agency, or was adopted 

without compliance with the statutory procedures.

Plaintiffs’ argument for standing under § 84-911 rests on 

language in our opinion in Project Extra Mile v. Nebraska 

Liquor Control Comm., 283 Neb. 379, 385-86, 810 N.W.2d 

149, 157 (2012), in which we observed that “[g]enerally, 

§ 84-911 requires a plaintiff to have common-law standing to 

challenge an agency’s regulation or its threatened application” 

and that common-law standing usually requires the demonstration of “an injury in fact that is actual or imminent.” Plaintiffs 

claim they have suffered a loss of their right under Nebraska’s 

Administrative Procedure Act to “informed participation in 

the regulationmaking process” and that this qualifies as a sufficient injury in fact. Brief for appellants at 11. As we will 

explain, we find that Plaintiffs do not have standing based on 

this asserted injury.

Plaintiffs concede that the injury they are claiming in this 

case is procedural in nature. Indeed, Plaintiffs attempt to distinguish H.H.N.H., Inc. v. Department of Soc. Servs., 234 Neb. 

363, 451 N.W.2d 374 (1990), a case in which we found the 

plaintiffs did not have standing under § 84-911, because their 

legal rights were not affected by the challenged regulations, as 

governing only cases in which the substance of a regulation is 

challenged. Plaintiffs, however, do not cite any authority recognizing that a party has injury-in-fact standing based solely 

on a claim that a procedural right to participate in administrative rulemaking was violated.
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In fact, federal courts have rejected the notion that a party 

has standing to challenge government action merely because 

a procedural right was violated. In Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 572, 112 S. Ct. 2130, 119 L. Ed. 2d 

351 (1992), the U.S. Supreme Court reversed a lower court’s 

decision finding that a party had standing based on a government official’s alleged failure to follow a statutory procedure 

“notwithstanding [the plaintiff’s] inability to allege any discrete injury flowing from that failure.” The Supreme Court 

explained that individuals have standing to enforce procedural 

rights “so long as the procedures in question are designed 

to protect some threatened concrete interest . . . that is the 

ultimate basis of . . . standing.” 504 U.S. at 573 n.8. Years 

later, in Summers v. Earth Island Institute, 555 U.S. 488, 129 

S. Ct. 1142, 173 L. Ed. 2d 1 (2009), the U.S. Supreme Court 

relied on its decision in Lujan to hold that individuals who 

claimed they had been denied the procedural right to file comments regarding certain actions by the U.S. Forest Service 

did not have standing in the absence of a showing that their 

concrete interests were affected as a result of the alleged procedural violation.

Following Lujan, federal courts of appeals have similarly 

held that a plaintiff claiming a procedural violation suffers 

the requisite injury for standing purposes only if they also 

suffered “a concrete injury as a result of the disregarded procedural requirement.” Parsons v. U.S. Dept. of Justice, 801 

F.3d 701, 712 (6th Cir. 2015). See, also, Iowa League of Cities 

v. E.P.A., 711 F.3d 844 (8th Cir. 2013); City of Sausalito v. 

O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (“we may recognize a ‘procedural injury’ when a procedural requirement has 

not been met, so long as the plaintiff also asserts a ‘concrete 

interest’ that is threatened by the failure to comply with that 

requirement”); Committee to Save the Rio Hondo v. Lucero, 

102 F.3d 445, 449 (10th Cir. 1996) (“[t]o fully establish injury 

in fact, a plaintiff must be able to show that a separate injury 

to its concrete, particularized interests flows from the agency’s 
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procedural failure”); Humane Soc. of U.S. v. Babbitt, 46 F.3d 

93, 99 (D.C. Cir. 1995) (“a ‘procedural injury’ arises where 

the claimant asserts a substantive injury from the denial of the 

statutorily required procedure”).

We find the rule for procedural injuries set forth in the above 

federal cases to be especially appropriate for claims brought 

under § 84-911. Section 84-911(1) provides that the validity of 

a rule or regulation may be challenged if “it appears that the 

rule or regulation or its threatened application interferes with or 

impairs or threatens to interfere with or impair the legal rights 

or privileges of the petitioner.” As we held in H.H.N.H., Inc. 

v. Department of Soc. Servs., 234 Neb. 363, 367, 451 N.W.2d 

374, 377 (1990), this language requires a plaintiff challenging 

the validity of a regulation under § 84-911 to “prove that he or 

she is a person whose legal rights and privileges are or may be 

impaired by the challenged regulation.” (Emphasis supplied.) 

Requiring plaintiffs bringing claims under § 84-911 to show 

that any asserted procedural injury led to a rule or regulation 

that interferes with or impairs their rights gives effect to the 

text of § 84-911(1).

As we described above, Plaintiffs’ argument for standing 

under § 84-911 rests on a procedural injury. They cannot, 

however, show that the procedural injury they assert led to a 

rule or regulation that interferes with or impairs their rights. 

Plaintiffs allege that DCS violated procedural requirements in 

the adoption of the Execution Protocol. The Execution Protocol 

sets forth how death sentences are to be carried out. Neither of 

the Plaintiffs is subject to a death sentence. Plaintiffs have not 

shown and neither can we discern a way in which their rights 

are threatened or violated by the Execution Protocol.

Faced with the fact that the Execution Protocol itself does 

not affect their legal rights, Plaintiffs attempt to find refuge in 

the language in § 84-911(2), which authorizes courts to declare 

rules and regulations invalid if “adopted without compliance 

with the statutory procedures.” Plaintiffs contend that this 

language shows the Legislature must have intended to allow 
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challenges to regulations by individuals asserting the infringement of a procedural right to participate in the regulationmaking process. We are not persuaded.

Section 84-911(2), to be sure, provides that a court may 

declare a rule or regulation invalid if it finds it was adopted 

without compliance with statutory procedures, but that subsection addresses the reasons a court may declare a rule or regulation invalid. It does not speak to who may seek invalidation, as 

§ 84-911(1) does. We could reach the conclusion Plaintiffs urge 

only by reading meaning into § 84-911(1) that is not reflected 

in its text. We do not interpret statutes in that manner. See State 

v. Garcia, 301 Neb. 912, 920 N.W.2d 708 (2018).

For these reasons, we find that Plaintiffs did not have standing under § 84-911 based on their assertion that their procedural rights were violated during the course of DCS’ adoption 

of the Execution Protocol.

Do Common-Law Exceptions to 

Injury-in-Fact Standing Apply 

in Actions Brought Under 

§ 84-911?

Plaintiffs argue that even if the district court correctly 

determined that they did not have standing as a result of their 

claimed injury to their right to participate in the regulationmaking process, they nonetheless have standing as Nebraska 

taxpayers. Plaintiffs claim they have taxpayer standing for two 

reasons: first, because they are seeking to enjoin the illegal 

expenditure of public funds, and second, because this action 

involves a matter of great public concern.

Plaintiffs’ arguments for taxpayer standing are based on 

cases in which this court has, in the course of applying our 

common-law standing doctrine, recognized exceptions to the 

usual requirement that a plaintiff demonstrate an injury in 

fact that is actual, imminent, concrete, and particularized. See, 

Thompson v. Heineman, 289 Neb. 798, 814, 857 N.W.2d 731, 

747 (2015) (describing taxpayer standing as “exception to 
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the injury-in-fact requirement”); Chambers v. Lautenbaugh, 

263 Neb. 920, 644 N.W.2d 540 (2002) (holding taxpayer had 

standing to challenge illegal expenditure of public funds); 

Cunningham v. Exon, 202 Neb. 563, 276 N.W.2d 213 (1979) 

(holding taxpayer had standing to challenge constitutional 

amendment because it raised matter of great public concern). 

Furthermore, Plaintiffs correctly point out that in Project Extra 

Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810 

N.W.2d 149 (2012), we allowed a taxpayer to bring an action 

under § 84-911 challenging a regulation that allegedly failed to 

comply with a statutory duty to assess and collect taxes on the 

grounds that the challenge mirrored a claim that public funds 

were being illegally spent.

Defendants ask us to reconsider and overrule the portion of 

Project Extra Mile holding that taxpayer standing applies in 

an action brought under § 84-911. They argue that this aspect 

of Project Extra Mile expanded the class of persons who may 

bring a suit under § 84-911 beyond the express limits set by the 

Legislature. For reasons explained below, we agree.

As noted above, the Nebraska Constitution does not contain 

a provision analogous to the U.S. Constitution’s limitation of 

the jurisdiction of federal courts to “cases” and “controversies.” Accordingly, the Nebraska Legislature may, so long as it 

acts within the bounds of other constitutional provisions, confer standing that is broader than the common-law baseline. For 

example, we have held that the Legislature conferred standing 

on “‘[a]ny citizen of this state’” to bring a challenge under the 

Open Meetings Act. See Schauer v. Grooms, 280 Neb. 426, 

441, 786 N.W.2d 909, 922 (2010), quoting Neb. Rev. Stat. 

§ 84-1414(3) (Cum. Supp. 2004) (emphasis omitted).

But just as the Legislature can provide for standing that is 

broader than common-law standards, so too can it provide for 

more specific or more restrictive standing requirements. For 

example, in In re Invol. Dissolution of Wiles Bros., 285 Neb. 

920, 830 N.W.2d 474 (2013), we held that the plaintiffs did not 

have standing to bring an action for judicial dissolution of a 
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corporation under the Business Corporation Act. Our analysis 

did not turn on common-law standing principles. Instead, we 

held that the text of the statute at issue allowed for such actions 

to be brought by “‘a shareholder,’” but that the plaintiffs did 

not qualify as such. 285 Neb. at 926, 830 N.W.2d at 479, quoting Neb. Rev. Stat. § 21-20,162(2)(a) (Reissue 2012).

As we discussed above, the Legislature specifically provided who may seek relief under § 84-911(1): those whose 

“legal rights or privileges” are impaired or threatened by the 

challenged regulation. We stated in Project Extra Mile that 

the language of § 84-911 “[g]enerally . . . requires a plaintiff 

to have common-law standing . . . .” 283 Neb. at 385, 810 

N.W.2d at 157. We then went on to consider whether standing 

was present under a common-law exception to the usual injuryin-fact requirement. See, also, Thompson, 289 Neb. at 814, 857 

N.W.2d at 747 (describing taxpayer standing as “exception to 

the injury-in-fact requirement”).

But, in fact, § 84-911 makes no reference to common-law 

standing. Neither does H.H.N.H., Inc. v. Department of Soc. 

Servs., 234 Neb. 363, 451 N.W.2d 374 (1990), the sole case 

cited in Project Extra Mile for the proposition that § 84-911 

tracks our common-law standing doctrine. Rather than incorporating the entirety of our common-law standing jurisprudence, both general rules and exceptions alike, the language 

of § 84-911 is framed in injury-in-fact terms: to have standing, a plaintiff must show his or her legal rights or privileges 

are or will be affected or impaired by the challenged regulation. The statute does not mention exceptions. And since the 

Legislature expressly limited the class of permissible plaintiffs 

under § 84-911 to those who can demonstrate an injury in fact 

tied to the regulation, it is not clear what authority this court 

had in Project Extra Mile to expand that class of permissible 

plaintiffs to include those that have standing under a commonlaw exception to the injury-in-fact requirement.

If forced to defend our recognition of standing under a 

common-law exception to the injury-in-fact requirement 
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in Project Extra Mile, one might attempt an argument that 

§ 84-911 is not so clearly limited to those plaintiffs who can 

demonstrate an injury in fact and that this court merely construed statutory ambiguity to allow plaintiffs to proceed under 

a common-law exception. But even if such an argument might 

have some merit in another context, it fails to reckon with 

another issue we did not consider in Project Extra Mile: the 

fact that § 84-911 is a waiver of the State’s sovereign immunity. See, e.g., Logan v. Department of Corr. Servs., 254 Neb. 

646, 578 N.W.2d 44 (1998). Our rules of construction require 

us to strictly construe such statutes in favor of the sovereign 

and against the waiver. See Rouse v. State, 301 Neb. 1037, 921 

N.W.2d 355 (2019). This leaves no room for finding a waiver 

“‘beyond what the [statutory] language requires.’” Ruckelshaus 

v. Sierra Club, 463 U.S. 680, 685, 103 S. Ct. 3274, 77 L. Ed. 

2d 938 (1983), quoting Eastern Transp. Co. v. United States, 

272 U.S. 675, 47 S. Ct. 289, 71 L. Ed. 472 (1927).

It is certainly not the case that § 84-911 must be read 

to permit suits brought by plaintiffs proceeding under only 

a common-law exception to the injury-in-fact requirement. 

Accordingly, our obligation to strictly construe § 84-911 

against such a waiver of the State’s sovereign immunity leads 

us to conclude that § 84-911 cannot be interpreted to allow 

such suits. We overrule Project Extra Mile v. Nebraska Liquor 

Control Comm., 283 Neb. 379, 810 N.W.2d 149 (2012), to the 

extent it recognized common-law exceptions to injury-in-fact 

standing in an action brought under § 84-911.

Because § 84-911 confers standing on only those individuals 

who can demonstrate an injury in fact as a result of the challenged regulation, these Plaintiffs lack standing. They seek to 

challenge the Execution Protocol, but they are not subject to 

death sentences. The only injury in fact they claim to have 

suffered is a procedural injury in the course of the regulationmaking process. As we have explained, that is insufficient to 

proceed in an action brought under § 84-911.
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CONCLUSION

Our decision today does not speak to the merits of Plaintiffs’ 

claims regarding the adoption of the Execution Protocol or 

to the Execution Protocol more generally. Instead, we find 

that the district court correctly dismissed the action without 

reaching the merits, because Plaintiffs lack standing under 

§ 84-911 to bring the claims they have asserted. We therefore 

affirm the district court’s dismissal for lack of subject matter jurisdiction.

Affirmed

Freudenberg, J., not participati

Miller-Lerman, J., concurri

Because we did not fully impose the limitations occasioned 

by the waiver of sovereign immunity contained in Neb. Rev. 

Stat. § 84-911 (Reissue 2014) in the case Project Extra Mile v. 

Nebraska Liquor Control Comm., 283 Neb. 379, 810 N.W.2d 

149 (2012), I concur in the opinion of the court and the decision that these plaintiffs lack standing.

With respect to a suitable challenge to the adoption and 

substance of the “Execution Protocol,” I note that in the 

defendants’ brief, they state, “[O]ther persons . . . with a personal stake in the application of the Execution Protocol exist: 

those on Nebraska’s death row,” and “the Execution Protocol 

affects only those with death sentences.” Brief for appellees 

at 11,12. Thus, I understand that the defendants acknowledge 

that upon a showing of relevant facts, those persons who have 

received a death sentence have been impacted by the substance of the Execution Protocol.

Further, at oral argument, the defendants were asked, 

“Anybody on death row can say the process was imperfect?” 

to which the defendants replied, “I do think they could.” And 

the defendants added, “Could someone who is impacted by 

a regulation bring a challenge about a procedural violation 

that they did not personally witness? And I think the answer 

[would be] yes.” And finally, when asked, based on § 84-911 
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under discussion, whether a death row inmate who would not 

have “receive[d] notice from the Attorney General’s office that 

we will soon seek a death warrant” could assert a claim, the 

defendants replied, “I do think they could.”

Based on their position articulated in briefing and at oral 

argument, the defendants indicated that death row inmates are 

potential plaintiffs under § 84-911 both as to the procedure 

by which the Execution Protocol was adopted and its substance. So the propriety of the adoption and substance of the 

Execution Protocol may not go unchallenged.