DOUGLAS COUNTY SCHOOL DIST. 0001 v. Johanns

• Decision Date: 15 April 2005
• Docket Number: No. S-04-874.,S-04-874.
• Citation: 694 N.W.2d 668,269 Neb. 664
• Parties: DOUGLAS COUNTY SCHOOL DISTRICT 0001, also known as Omaha Public Schools, et al., appellees, v. Michael O. JOHANNS, in his official capacity as Governor of the State of Nebraska, et al., appellees, and Lancaster County School District 0001, also known as Lincoln Public Schools, et al., appellants.
• Court: Nebraska Supreme Court

694 N.W.2d 668

269 Neb. 664

DOUGLAS COUNTY SCHOOL DISTRICT 0001, also known as Omaha Public Schools, et al., appellees, v. Michael O. JOHANNS, in his official capacity as Governor of the State of Nebraska, et al., appellees, and Lancaster County School District 0001, also known as Lincoln Public Schools, et al., appellants.

No. S-04-874.

Supreme Court of Nebraska.

April 15, 2005.

James B. Gessford, Gregory H. Perry, and Joshua J. Schauer, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., Lincoln, for appellants Lancaster County School District 0001 et al.

David M. Pedersen, Jill Robb Ackerman, Elizabeth Eynon-Kokrda, and Kenneth W. Hartman, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, L.L.P., Omaha, for appellees Douglas County School District 0001 et al.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

Lancaster County School District 0001, also known as Lincoln Public Schools, and other parties (collectively LPS) appeal a district court's order that denied it the right to intervene. In the underlying action, Douglas County School District 0001, also known as Omaha Public Schools, and other parties (collectively OPS) challenged the constitutionality of the state school funding statutes. In arguing it has a right to intervene, LPS contends that it has a direct legal interest in the action because if the school funding system is enjoined, it may lose funding. We determine that (1) the parens patriae doctrine prevents LPS' intervening as defendants because its interest is adequately represented by the State and (2) LPS cannot intervene as plaintiffs because its interest is speculative. Because we determine that LPS is not entitled to intervene as a matter of right, we affirm.

BACKGROUND

OPS filed this action against Michael O. Johanns, in his official capacity as Governor, and other public officers (collectively the State). It seeks a declaratory judgment that the Nebraska statutory school funding system is unconstitutional under special legislation and the equal protection and due process clauses of the Nebraska Constitution. The lengthy operative complaint sought to enjoin the State from further implementing the funding system and an award of attorney fees.

The allegations in the complaint focused on the school funding system's failure to provide the resources necessary to adequately educate students in ethnically and economically diverse settings of Douglas County School District 0001. The school district alleged that it is the largest in Nebraska, that its student body is economically diverse, and that it has the largest racially and ethnically diverse student body in Nebraska. The allegations included statistics that set out the number of students in programs such as students who qualify for free lunches, the percent of students for whom English is their second language, and the number of students in special education. The school district alleged that federal mandates required it to meet standards to educate these students, and it provided detailed allegations of those standards. The complaint alleged that the school district's students failed in meeting academic standards and that it could not properly educate the students without additional funding. The complaint sets out the details of the funding system. It alleged that the State was on notice of the school district's student body characteristics, that the school funding system failed to provide the students with the opportunity to obtain the free education guaranteed to them under the Nebraska Constitution, and that the funding system denied them an equal opportunity to meet legally set academic standards.

OPS' complaint further alleged that the school funding system was unconstitutional on its face and as applied. It asked the court to declare the funding system void and to enjoin the State from further executing or implementing the system.

LPS moved to intervene as both defendants and plaintiffs. Lancaster County School District 0001 alleged that it is the second largest school district in Nebraska, that its students share many of the characteristics of Douglas County School District 0001, and that it is required to comply with the same academic standards. In the complaint, the school district alleged nothing about the specific number of economically, racially, or ethnically diverse students it serves, or how it could or could not meet the students' needs. LPS alleged that it sought to intervene as defendants so it could resist the claim that the funding system was unconstitutional. It also sought to intervene as plaintiffs, stating:

[LPS] allege[s] in support thereof that in the event relief is afforded [to OPS, it is] joining [OPS] in claiming what is sought by the Complaint, or by uniting with the [State] in resisting the claim of [OPS], or by demanding anything adversely to both [OPS and the State].

....

[I]n the event Nebraska's school funding system or the state aid formula is held to be unconstitutional or otherwise unlawful ... the causation of such must be determined, and that to the extent Nebraska's school funding system or the state aid formula is determined to be the cause, that [LPS joins OPS] in claiming what is sought by the Complaint....

LPS further alleges that it "will be subject to harm from any loss of funding and such loss of funding will cause the funding system or the state aid formula to be unconstitutional or otherwise unlawful as to [LPS]."

The State did not object to the motion to intervene. OPS moved to dismiss or strike the complaint in intervention. The district court found that (1) LPS failed to allege facts showing that it had a direct and immediate interest in the action; (2) if the funding system were declared unconstitutional, LPS could participate in the legislative process when the Legislature acted to restructure the system; and (3) even if LPS had a direct interest, because the State, as defendants, consisted of public officers engaged in litigation to protect public rights, no private person was entitled to intervene. The court overruled the motion to intervene and dismissed the intervention complaint. LPS appeals.

ASSIGNMENTS OF ERROR

LPS assigns, rephrased, that the district court erred by denying its motion to intervene, dismissing its complaint, and failing to find that it was a necessary party.

STANDARD OF REVIEW

Whether a party has the right to intervene in a proceeding is a question of law. In re Change of Name of Davenport, 263 Neb. 614, 641 N.W.2d 379 (2002). The presence of necessary parties to a suit is a jurisdictional matter and cannot be waived by the parties; it is the duty of the plaintiff to join all persons who have or claim any interest which could be affected by the judgment. Spear T Ranch v. Knaub, ante 269 Neb. 177, 691 N.W.2d 116 (2005). A jurisdictional question which does not involve a factual dispute is a matter of law. Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33 (2004).

When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Dworak v. Farmers Ins. Exch., ante 269 Neb. 386, 693 N.W.2d 522 (2005).

ANALYSIS

LPS contends that it has a direct legal interest in the action and therefore a right to intervene. OPS argues, however, that the State is adequately defending the constitutionality of the school funding system and that LPS has failed to plead a direct legal interest in the matter.

Intervention in Nebraska is controlled by statute, which provides:

Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to an action, or against both, in any action pending or to be brought in any of the courts of the State of Nebraska, may become a party to an action between any other persons or corporations, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendants in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the action, and before the trial commences.

Neb.Rev.Stat. § 25-328 (Cum. Supp. 2004).

LPS HAS FAILED TO SHOW RIGHT TO INTERVENE AS DEFENDANTS

In its chameleon-like pleading, LPS alleges that it has a direct legal interest in defending the constitutionality of the school funding statutes and that if the funding statutes are unconstitutional, it seeks the same relief that OPS might receive. In seeking to intervene as defendants, it argues that the OPS action could enjoin school funding and harm LPS. OPS, however, argues that the State is adequately representing any LPS interest regarding the statutes' constitutionality.

We have long held that "`"[w]hen public officers are engaged in litigation to protect public rights, and their pleadings and procedure maintain the public interest, no private person is entitled to intervene."'" Best & Co., Inc. v. City of Omaha, 149 Neb. 868, 877, 33 N.W.2d 150, 156 (1948). Accord Smithberger v. Banning, 130 Neb. 354, 265 N.W. 10 (1936). We have applied the same principle as other jurisdictions which routinely hold that under the parens patriae doctrine, when a state is a party to a suit involving a matter of sovereign interest, it is presumed to represent the interests of all its citizens. See, e.g., Maine v. Director, U.S. Fish and Wildlife Service, 262 F.3d 13 (1st Cir.2001); United States v. Hooker Chemicals & Plastics, 749 F.2d 968 (2d Cir.1984); Commonwealth of Pa. v. Rizzo, 530 F.2d 501 (3d Cir.1976); New Mexico Right to Choose/NARAL v. Johnson, 126 N.M. 788, 975 P.2d 841 (1998). See, also, Wade v. Goldschmidt, 673 F.2d 182 (7th Cir.1982) (discussing presumption in dicta). The concept of parens patriae refers to when "a governmental entity presents itself as a trustee, guardian, or representative of all citizens." 6 James Wm. Moore,...