Heist v. Neb. Dep't of Corr. Servs., S-20-813.
| Docket Number | S-20-813. |
| Decision Date | 23 September 2022 |
| Citation | 312 Neb. 480,979 N.W.2d 772 |
| Parties | Robert J. HEIST II, appellant, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES et al., appellees. |
| Court | Nebraska Supreme Court |
Robert J. Heist II, pro se.
Douglas J. Peterson, Attorney General, and Scott R. Straus, for appellee.
Robert J. Heist II, an inmate in the Nebraska Department of Correctional Services (DCS) system, appeals the dismissal of his petition for declaratory judgment under the Administrative Procedure Act (APA) and Nebraska's Uniform Declaratory Judgments Act (UDJA). Heist argues that good time credit earned pursuant to Neb. Rev. Stat. § 83-1,107(2)(b) (Cum. Supp. 2020) applies to an inmate's parole eligibility date (PED). In affirming the decision of the district court, we conclude that good time earned pursuant to § 83-1,107(2)(b) is applicable only to reduce an inmate's maximum sentence and, accordingly, has no applicability to an inmate's PED.
On April 4, 2016, Heist was sentenced to imprisonment for a minimum of 11 years (with a mandatory minimum of 3 years) and a maximum of 25 years in the DCS system for child enticement. According to DCS records, Heist's PED is March 30, 2023, and DCS’ brief on appeal gives his tentative release date (TRD) as February 10, 2030.
Since his incarceration, Heist has been earning good time credit under § 83-1,107. It is undisputed that the reductions of Heist's sentence under § 83-1,107 have been, and continue to be, deducted from the maximum term of his sentence to calculate the date when discharge from state custody becomes mandatory. It further appears that, currently, no reductions have been applied to Heist's minimum sentence, mandatory minimum sentence, or PED.
DCS has adopted "Policy 104.08," which is titled "Inmate Time Calculations and Sentencing." The stated purpose of DCS’ Policy 104.08 is to "outlin[e] methodology for calculating inmate's sentences." As to procedures for inmate time computations, Policy 104.08 notes that there are seven separate Nebraska laws that govern the release of all inmates committed to DCS and explains that "[t]hese statutes, along with the opinions of Nebraska courts and the state Attorney General's office, form the basis of all time calculations." The first Nebraska law identified is 2011 Neb. Laws, L.B. 191, which Policy 104.08 describes as follows:
Heist filed a petition against DCS, Scott Frakes in his official capacity as DCS director, Mickie Baum in her official capacity as DCS records administrator, and Candace Bottorf in her official capacity as DCS agency legal counsel (hereinafter collectively DCS) for declaratory judgment under the APA and the UDJA. Heist alleged that Policy 104.08 improperly withholds L.B. 191 good time from PEDs. He also argued that Policy 104.08 is a rule or regulation for purposes of the APA and is not authorized by the language of § 83-1,107 and Neb. Rev. Stat. § 83-1,110 (Reissue 2014). DCS filed a motion to dismiss which, by agreement and notice to both parties, was converted to a motion for summary judgment. Heist subsequently filed a cross-motion for summary judgment.
In October 2020, the district court entered an order sustaining DCS’ motion, overruling Heist's motion, and dismissing Heist's complaint. The court concluded that it lacked jurisdiction over Heist's APA claim, because Policy 104.08 was not a rule or regulation as defined by Neb. Rev. Stat. § 84-901 (Cum. Supp. 2020) and the State did not waive its sovereign immunity. The court further concluded that DCS was entitled to summary judgment on the UDJA claim, because Policy 104.08 accurately outlines how sentences are to be calculated pursuant to Nebraska law and Heist's PED was correctly calculated. Heist appeals.
Heist filed a petition to bypass review by the Nebraska Court of Appeals, asserting the case involves an issue of first impression in Nebraska. We granted the petition to bypass and moved the case to our docket.
Heist assigns, restated and consolidated, that the district court erred in (1) finding that DCS Policy 104.08 is an internal procedural document and thus concluding that it lacked subject matter jurisdiction over his APA claim; (2) granting summary judgment in favor of DCS on his UDJA claim, when Nebraska law requires application of good time credit earned under § 83-1,107(2)(b) to PEDs; and (3) finding that 62 inmates having a PED after their respective TRD, which is colloquially referred to as an "inverted sentence," is not so absurd that the Legislature could not have intended § 83-1,107 to be interpreted as applying only to the maximum sentence.
An appellate court affirms a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.1 An appellate court reviews the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor.2
Sovereign immunity is jurisdictional in nature, and courts have a duty to determine whether they have subject matter jurisdiction over a matter.3 Subject matter jurisdiction and statutory interpretation present questions of law.4 An appellate court independently reviews questions of law decided by a lower court.5
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision.6
As an initial matter, we note that the good time law to be applied to a defendant's sentence is the law in effect at the time the defendant's sentence becomes final.7 Because Heist was sentenced in 2016, L.B. 191 is the applicable law governing his sentence. Prior to the enactment of L.B. 191, § 83-1,107 reduced an inmate's sentence by 6 months for each year of the inmate's term. L.B. 191 amended § 83-1,107 to allow an inmate to earn additional good time at the rate of 3 days per month after completion of 1 year of incarceration so long as the offender did not commit certain offenses under DCS’ disciplinary code. Section 83-1,107(2) now reads as follows:
L.B. 191 also amended Neb. Rev. Stat. § 83-1,108 (Reissue 2014) to require that the Board of Parole reduce a parolee's parole term for good conduct while under parole by 10 days for each month. Such reduction shall be deducted from the maximum term, less good time granted pursuant to § 83-1,107, to determine the date when discharge from parole becomes mandatory.
As briefly discussed above, DCS inmates may accrue two different good time credits under § 83-1,107. However, the central issue in this case involves good time credits earned pursuant to § 83-1,107(2)(b). As such, we decline to discuss the implications of good time credits earned pursuant to § 83-1,107(2)(a).
Before reaching the legal import of § 83-1,107(2)(b) and Policy 104.08, it is our duty to determine whether we have jurisdiction over this matter.8 Where a lower court lacks subject matter jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.9
Heist argues that the district court erred in determining that Policy 104.08 is not a rule or regulation and, thus, also in determining that it lacked jurisdiction to adjudicate whether the policy exceeds DCS’ statutory authority. Specifically, Heist maintains Policy 104.08 is a rule or regulation because it prescribes penalties, affects private rights, and sets its own standards for calculating good time. He also maintains it has the force of law, as shown by DCS’ "[p]ast practice" in releasing approximately 300 inmates prematurely.10 DCS disagrees, arguing that Policy 104.08 is an internal procedural document that repeats the relevant statutory language about calculating inmate sentences "nearly verbatim," rather than sets its...
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