Doe v. State
980 N.W.2d 842
Neb.2022Background
- John Doe received pardons for prior convictions and obtained court orders sealing his criminal history under Neb. Rev. Stat. § 29-3523.
- Doe applied for a DCS caseworker job in 2019, answered “no” to criminal-history question, but alleges the Nebraska State Patrol (NSP) disclosed his sealed records to the Department of Correctional Services (DCS), which then declined to hire him.
- Doe sued the State, NSP, DCS, and DCS director under the State Tort Claims Act (STCA), alleging negligent disclosure and consideration of sealed records in violation of § 29-3523 and seeking money damages, injunction, and expungement.
- DCS and Frakes moved to dismiss for failure to state a claim and sovereign immunity; the district court dismissed the entire complaint for lack of subject-matter jurisdiction, concluding Doe failed to allege a ‘‘tort claim’’ under the STCA and that § 29-3523 does not create a private tort duty.
- On appeal the Nebraska Supreme Court affirmed: it held Doe did not plausibly allege a STCA ‘‘tort claim’’ because there is no private-person analogue liability for the alleged statutory violations and the Criminal History Act provides other remedies (criminal penalties and mandamus).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Doe alleged a "tort claim" under the STCA (definition requires a private-person analogue) | Doe: pleadings seek money for personal injury from negligent disclosure/consideration of sealed records; § 29-3523 creates a tort duty applicable to private persons | State: STCA waiver applies only where a private person would be liable; no private analogue exists here | Held: No. Plaintiff failed to allege a tort claim because no private-person analogue liability exists |
| Whether § 29-3523 creates a tort duty enforceable against private persons | Doe: statute imposes mandatory duties and was intended to protect pardoned persons, so it creates tort liability | State: § 29-3523 is administrative; Legislature provided other remedies, so it does not create private tort liability | Held: § 29-3523 does not create a tort duty that would subject private persons to civil liability |
| Whether Nebraska common law recognizes a general duty not to disclose sealed criminal-history information | Doe: common-law duty of reasonable care exists for custodians of sealed/sensitive information | State: no Nebraska case recognizes such a duty; statute governs this field | Held: No recognized common-law duty in Nebraska to refrain from disclosing sealed criminal-history information |
| Whether injunctive relief / expungement sought are covered by STCA waiver | Doe: relief requested in complaint includes injunction/expungement | State: STCA waives liability for money only; nonmonetary relief is not within STCA waiver | Held: Injunctive relief and expungement are outside STCA’s money-only waiver and thus not grounds for STCA jurisdiction |
Key Cases Cited
- Claypool v. Hibberd, 261 Neb. 818 (2001) (articulates three-factor test for when a statute creates a tort duty)
- Brownback v. King, 141 S. Ct. 740 (2021) (FTCA private-person requirement is jurisdictional; plaintiff must plausibly allege private-analogue liability)
- Cortes v. State, 191 Neb. 795 (1974) (STCA waives state liability only under circumstances where a private person would be liable)
- Stonacek v. City of Lincoln, 279 Neb. 869 (2010) (courts should consider statutory remedies when deciding if statute creates private tort liability)
- Reiber v. County of Gage, 303 Neb. 325 (2019) (elements of negligence apply under STCA as under common law against private persons)
- Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48 (2013) (STCA’s definition of ‘‘money only’’ excludes nonmonetary relief such as injunctive remedies)