State ex rel. Peterson v. Ebke
930 N.W.2d 551
| Neb. | 2019Background
- In 2018 the Judiciary Committee of the 105th Nebraska Legislature (with Executive Board approval) issued a subpoena commanding Scott Frakes, Director of the Department of Correctional Services, to testify at a May hearing about the Department’s lethal‑injection protocol.
- The State (Attorney General) and Frakes sued committee members and others, seeking to quash the subpoena under Neb. Rev. Stat. § 50‑406 and obtain declaratory and injunctive relief on related rule, statutory, and separation‑of‑powers grounds.
- The district court denied the senators’ motion to dismiss and granted the motion to quash the subpoena, concluding the subpoena was not issued in the discharge of a duty imposed by the Legislative Council, statute, or a legislative resolution.
- The senators appealed. While the appeal was pending, the 105th Legislature’s biennium ended and the 106th Legislature convened; several named senators left office.
- The State filed a suggestion of mootness; the Nebraska Supreme Court held the subpoena and underlying committee investigation expired with the 105th Legislature’s term, rendering the appeal moot and dismissing the appeal and party‑substitution motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the appeal remain justiciable after the 105th Legislature ended? | The State: the subpoena expired with the prior Legislature, so the appeal is moot. | Senators: district‑court rulings remain reviewable; immunity and statutory questions are live. | Held: Moot. The investigation and subpoenas expired at the end of the 105th Legislature, eliminating a live case or controversy. |
| Whether a legislative investigatory subpoena survives a change in legislative biennium (is the Nebraska Legislature a "continuing body") | The State: Nebraska Legislature is not a continuing body; committees and subpoenas die at term end absent law to continue them. | Senators: pointed to federal analogues and committee powers; argued committee actions are legitimate legislative functions. | Held: Nebraska’s unicameral Legislature is not a continuing body; committee investigations and subpoenas presumptively expire at term end. |
| Whether the subpoena was valid under § 50‑406 and committee rules (and whether the district court erred in quashing it) | The State challenged procedural compliance and statutory authority (e.g., § 84‑907.10 referral, Legislative Council duties). | Senators contended committee subpoena power and Executive Board approval rendered the subpoena lawful and shielded members by legislative immunity. | Held: Court did not reach substantive merits on appeal because the underlying subpoena expired and issues became moot. |
| Whether public‑interest exception to mootness applies | The State argued mootness foreclosed relief; alternatively public‑interest might warrant decision. | Senators sought consideration of immunity/separation‑of‑powers questions as significant. | Held: Public‑interest exception not invoked—court declined to decide on hypothetical future recurrence and noted statutes/rules could change. |
Key Cases Cited
- Eastland v. United States Servicemen's Fund, 421 U.S. 491 (U.S. 1975) (investigatory subpoenas issued by a prior Congress may expire with that body and render related litigation moot)
- McGrain v. Daugherty, 273 U.S. 135 (U.S. 1927) (legislative investigatory power explained in historical context)
- State ex rel. Stenberg v. Moore, 249 Neb. 589 (Neb. 1996) (a legislature cannot bind successor legislatures; authority of a legislature is limited to its term)