Stewart v. Heineman
296 Neb. 262
| Neb. | 2017Background
- Plaintiffs: three same-sex couples sued DHHS officials under 42 U.S.C. § 1983 seeking declaratory and injunctive relief to prevent enforcement of a 1995 administrative memorandum (Memo 1-95) and a supervisory placement practice (the "Pristow Procedure") that treated gay/lesbian applicants differently for foster/adoptive licensing and placements.
- Memo 1-95 (on DHHS website) stated children would not be placed with persons who identify as homosexual and that no foster license shall be issued to such persons; it was never formally rescinded.
- The Pristow Procedure (verbal practice adopted by the Division director) required extra layers of approval (up to five levels, including director approval) for placement recommendations involving homosexual applicants, while heterosexual applicants faced fewer levels.
- Evidence at summary judgment included DHHS employees’ depositions and internal emails showing continued presence of Memo 1-95 on the website, inconsistent dissemination of the Pristow Procedure, and that Memo 1-95 discouraged applicants.
- District Court granted plaintiffs summary judgment, struck Memo 1-95, enjoined discriminatory procedures, and awarded costs and attorney fees; defendants appealed on standing/ripeness, mootness (Memo removed from website during briefing), evidentiary, and fee-recording grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ripeness / Standing | Plaintiffs were ready and able to apply and were deterred by Memo 1-95 and the Pristow Procedure; stigma and barrier are injuries supporting pre-enforcement relief | Plaintiffs had not applied or been denied; harm is speculative until an actual denial | Held: ripeness satisfied; unequal-treatment barrier and stigmatic injury suffice; futility doctrine applies (no need to apply) |
| Mootness (Memo removed from website) | Removal did not moot suit because Memo was openly declared for years, was not formally rescinded, and the Pristow Procedure remained in effect; voluntary cessation burden unmet | Removal from website during litigation rendered the controversy moot | Held: not moot; defendant failed to show wrongful behavior could not recur; secret practice change cannot moot a challenge to a published discriminatory policy |
| Merits (equal protection / due process) | Memo 1-95 and Pristow Procedure discriminatorily imposed unequal scrutiny and stigma on gay applicants; no legitimate/stated governmental interest justifies the differential treatment | Defendants argued same "best interests" standard applies and extra review is a neutral supervisory mechanism to prevent bias | Held (not contested on appeal): court previously found both Memo and Pristow Procedure violated equal protection and due process; injunction appropriate to bar disparate treatment |
| Attorney fees proof & award | Plaintiffs submitted detailed fee affidavits in the court file and addressed them at hearing; award was within discretion | Defendants argued fee evidence was only in transcript/clerk file and not in bill of exceptions, so record inadequate | Held: fee evidence was filed, considered at hearing, and defendants raised no timely objection; award affirmed as not an abuse of discretion |
Key Cases Cited
- Gratz v. Bollinger, 539 U.S. 244 (rejection of applicants’ equal-protection injury requirement to show ultimate denial; barrier/stigma suffices)
- Northeastern Fla. Chapter, Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (ripeness: fitness and hardship inquiry)
- Teamsters v. United States, 431 U.S. 324 (nonapplicants deterred by open discriminatory policy can challenge it; no futility requirement to apply)
- Heckler v. Mathews, 465 U.S. 728 (stigmatic injury from discriminatory government action supports standing)
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (ripeness/standing principles in competitive contexts; plaintiffs need only show readiness and ability to compete)
- Friends of the Earth, Inc. v. Laidlaw Environmental Servs., 528 U.S. 167 (voluntary cessation doctrine; defendant bears heavy burden to show cessation moots case)