Griffith v. Nebraska Dept. of Corr. Servs., 934 N.W.2d 169

Plaintiffs Rev. Stephen C. Griffith and Sen. Ernie Chambers (Nebraska citizens) challenged the Nebraska Department of Correctional Services’ January 2017 "Execution Protocol" (regulation governing how death sentences are carried out).
Griffith requested materials before a public hearing and alleges DCS failed to provide a fiscal impact statement and working copies required by Neb. Rev. Stat. § 84-907; both plaintiffs testified but say they could not give fully informed comments.
Plaintiffs sued under Neb. Rev. Stat. § 84-911 seeking a declaratory judgment that the Protocol was void and an injunction barring executions under it, alleging statutory and state-constitutional due process violations.
The district court dismissed for lack of standing; the Nebraska Supreme Court granted bypass and reviewed standing de novo.
The Supreme Court held plaintiffs lacked standing: a procedural injury to rulemaking participation alone does not satisfy § 84-911 unless it resulted in a rule that impairs the plaintiffs’ legal rights (here, neither plaintiff faces a death sentence).
The Court overruled Project Extra Mile to the extent it allowed common-law exceptions (including taxpayer standing) to supplant § 84-911’s injury-in-fact requirement, emphasizing strict construction of sovereign-immunity waivers.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing under § 84-911 based on procedural injury to rulemaking	Griffith: denial of required materials denied "informed participation" — a concrete injury sufficient under § 84-911	DCS: the Execution Protocol does not impair plaintiffs’ legal rights; no concrete injury	Held: No standing — procedural violation alone insufficient; § 84-911 requires an injury that interferes with or impairs petitioner’s legal rights
Taxpayer/common-law exceptions to injury-in-fact (taxpayer standing)	Plaintiffs: taxpayer standing applies to challenge illegal public expenditures or matters of great public concern	Defendants: § 84-911 limits standing to those with legal rights impaired; court should not import common-law exceptions	Held: Court rejected taxpayer/common-law exceptions under § 84-911 and overruled Project Extra Mile to the extent it allowed such exceptions
Applicability of federal procedural-injury precedents	Plaintiffs relied on asserted procedural harms to the rulemaking process	Defendants relied on Lujan/Summers: procedural rights only confer standing when connected to a concrete interest	Held: Court adopted rule that procedural injuries confer standing only if they cause a concrete, particularized injury to a petitioner’s legal interests

Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379 (2012) (previously allowed broader standing under § 84-911; overruled in part)
H.H.N.H., Inc. v. Department of Soc. Servs., 234 Neb. 363 (1990) ( § 84-911 requires petitioner show legal rights may be impaired by challenged regulation)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (procedural-rights standing requires a connection to a threatened concrete interest)
Summers v. Earth Island Institute, 555 U.S. 488 (2009) (reaffirming that procedural violations alone do not confer standing absent concrete injury)
Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) (waivers of sovereign immunity strictly construed against waiver)
Ritchhart v. Daub, 256 Neb. 801 (1999) (Nebraska standing principles; de novo review of jurisdictional standing)
Thompson v. Heineman, 289 Neb. 798 (2015) (discussing taxpayer standing as a common-law exception)