Stewart v. Heineman
892 N.W.2d 542
| Neb. | 2017Background
- Plaintiffs: three same-sex couples sued DHHS officials under 42 U.S.C. § 1983 challenging (1) a 1995 administrative memorandum (Memo 1-95) that on its face barred persons who identify as homosexual from foster-home licensure/placement, and (2) a later, verbal five-tier placement review (the “Pristow Procedure”) that subjected gay applicants to extra approval layers.
- Factual record: Memo 1-95 remained on DHHS website and in training materials; DHHS director Pristow implemented a verbal procedure allowing consideration of gay applicants but requiring additional levels of approval (director final sign-off), and deliberately did not rescind Memo 1-95 in writing.
- Procedural posture: District court denied defendants’ dismissal, granted plaintiffs’ summary judgment, struck/ordered rescission of Memo 1-95, enjoined differential treatment under any policy/procedure (including the Pristow Procedure), awarded costs and $145,111.30 in attorney fees; defendants appealed.
- Defendants’ defenses on appeal: lack of standing/ripeness because plaintiffs had not applied/been denied; mootness/absence of case or controversy because DHHS had ceased enforcing Memo 1-95 and later removed it from the website; and alleged procedural defects in the fee evidence.
- Holding below affirmed: Nebraska Supreme Court upheld justiciability (ripeness and non-mootness), concluded published discriminatory memo and the Pristow Procedure imposed stigmatic and procedural barriers sufficient for pre-enforcement injunctive/declaratory relief, and affirmed the attorney-fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Ripeness to seek declaratory/injunctive relief | Plaintiffs were "able and ready" to apply and were deterred by the published Memo 1-95 and by the Pristow Procedure; stigmatic and procedural harms are imminent and ripe for pre-enforcement relief | Plaintiffs hadn’t applied or been denied so harms are speculative; claims are not ripe | Held: Ripeness satisfied — barrier to equal treatment and stigmatic injury suffice; pre-enforcement relief appropriate (no futility requirement) |
| Mootness based on DHHS practice change and website removal of Memo 1-95 | Warning that the published memo and the Pristow Procedure deter applicants; removal from website during litigation did not moot case | Removal of Memo 1-95 and asserted change in practice rendered dispute moot | Held: Not moot — published memo and secret verbal policy preserved live controversy; voluntary cessation does not moot absent showing wrongful conduct cannot recur |
| Challenge to Pristow Procedure (extra review) vs. Memo 1-95 | Pristow Procedure itself discriminates by subjecting gay applicants to a unique extra-review process, causing unequal treatment and stigma | Extra review merely ensures consistency and prevents bias in placements; same substantive "best interests" standard applies | Held: Pristow Procedure violates equal protection and due process as it treats similarly situated applicants differently without legitimate justification |
| Attorney fees evidence and award under 42 U.S.C. § 1988 | Plaintiffs submitted detailed fee affidavits/exhibits to the clerk and argued at hearing; defendants had notice and objected only to amount | Fee evidence was not formally admitted into the bill of exceptions, so award lacks proper evidentiary basis | Held: Fee award affirmed — appellate record shows the fee materials were filed, considered at hearing, and defendants had opportunity to contest; no abuse of discretion by trial court |
Key Cases Cited
- Gratz v. Bollinger, 539 U.S. 244 (2003) (injury in equal protection case can be denial of equal treatment; plaintiffs need show they are able and ready to apply)
- Northeastern Fla. Chapter, Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (1993) (ripeness: fitness for judicial decision and hardship from withholding review)
- Teamsters v. United States, 431 U.S. 324 (1977) (nonapplicants deterred by an openly announced discriminatory policy may be victims; futility doctrine permits pre-enforcement relief)
- Heckler v. Mathews, 465 U.S. 728 (1984) (stigmatic noneconomic injuries from discrimination can support standing)
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (plaintiffs need only show near-future intent to bid or compete to establish ripeness in challenge to discriminatory government practices)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (voluntary cessation of allegedly unlawful conduct does not automatically moot a case; defendant bears heavy burden to show non‑recurrence)