Mullendore v. Nuernberger

• Decision Date: 20 January 1989
• Docket Number: No. 87-426,87-426
• Citation: 230 Neb. 921,434 N.W.2d 511
• Parties: , 51 Ed. Law Rep. 603 Robert A. MULLENDORE, Appellee and Cross-Appellant, v. Richard NUERNBERGER, County Treasurer of Lancaster County, Nebraska, et al., Appellants and Cross-Appellees.
• Court: Nebraska Supreme Court

Page 511

434 N.W.2d 511

230 Neb. 921, 51 Ed. Law Rep. 603

Robert A. MULLENDORE, Appellee and Cross-Appellant, v. Richard NUERNBERGER, County Treasurer of Lancaster County, Nebraska, et al., Appellants and Cross-Appellees.

No. 87-426.

Supreme Court of Nebraska.

Jan. 20, 1989.

Syllabus by the Court

1. Declaratory Judgments. The remedy of declaratory judgment may be available to a litigant when a controversy exists as a result of a claim asserted against one who has an interest in contesting such claim, the controversy is between persons whose interests are adverse, the party seeking declaratory relief has a legally protectable interest or right in the subject matter of the controversy, and the issue involved is capable of present judicial determination.

2. Courts: Jurisdiction. While not a constitutional prerequisite for jurisdiction of courts of the State of Nebraska, existence of an actual case or controversy, nevertheless, is necessary for the exercise of judicial power in Nebraska.

3. Declaratory Judgments. The Uniform Declaratory Judgments Act, Neb.Rev.Stat. §§ 25-21,149 et seq. (Reissue 1985), is available when a present actual controversy exists and all interested persons are parties to the proceedings, and then only when a justiciable issue exists for resolution.

4. Declaratory Judgments. For purposes of determining whether a litigant is entitled to declaratory relief, existence of a controversy depends not only on the circumstances existing at the commencement of the action for a declaratory judgment but also the circumstances existing when the judgment is granted.

5. Declaratory Judgments: Moot Question. As any other lawsuit, a declaratory judgment action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action.

6. Declaratory Judgments: Proof. To obtain declaratory relief, a plaintiff has the burden to prove the existence of a justiciable controversy and an interest in the subject matter of the action.

7. Declaratory Judgments: Proof: Statutes: Standing. A plaintiff in a declaratory judgment action challenging the validity of a statute must prove that the plaintiff is a person whose rights, status, or other legal relations are affected by the challenged statute.

James B. Gessford, of Perry, Perry, Witthoff, Guthery, Haase & Gessford, P.C. Lincoln, and Douglas D. Cyr, Deputy Lancaster County Atty., for appellants and cross-appellees.

John F. Recknor, of Barlow, Johnson, DeMars & Flodman, Lincoln, for appellee and cross-appellant.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

In his declaratory judgment action filed during 1983 in the district court for Lancaster County, Robert A. Mullendore sought a declaration that Neb.Rev.Stat. § 79-4,102 (Cum.Supp.1982), also identified as 1982 Neb.Laws, L.B. 933, was unconstitutional. The statute in question contained a formula and factors for determination of nonresident high school tuition rates and a corresponding tax levy.

In his amended petition, Mullendore alleged that the statutory scheme in L.B. 933 was a violation of certain provisions of the Nebraska Constitution, namely, an invalid delegation of legislative authority to the receiving school districts and the Nebraska Department of Education in violation of article II, § 1 (separation of powers), and article III, § 1 (legislative authority vested in Legislature); an improper tax measure in contravention of article VIII, § 1 (revenue by taxation), and § 4 (prohibition against remission of taxes); and noncompliance with article III, § 14 (one subject in a legislative bill), relative to enactment of L.B. 933.

In July of 1984, more than 1 year after Mullendore had filed his petition, the Legislature repealed the 1982 version of § 79-4, 102 (L.B. 933) and replaced the repealed legislation with what was subsequently codified as § 79-4,102 (Cum.Supp.1984). After repeal of L.B. 933, the defendant school districts filed a motion for summary judgment, alleging that repeal of L.B. 933 rendered Mullendore's questions moot. After the district court granted summary judgment to the school districts, Mullendore appealed. In the initial appeal of this case, Mullendore v. School Dist. No. 1, 223 Neb. 28, 388 N.W.2d 93 (1986) (Mullendore I ), we determined that the district court had incorrectly sustained the motion for summary judgment and held that Mullendore's action was not moot at that time, when we noted:

Although Mullendore has alleged that the school districts had certified tuition rates pursuant to L.B. 933, the record does not conclusively establish that taxes authorized by L.B. 933 have been collected from Mullendore and other resident taxpayers of the school districts. Mullendore's amended petition, considered by the district court in connection with the motion for summary judgment, see Neb.Rev.Stat. § 25-1332 (Reissue 1985), provides a reasonable inference that taxes have been levied under L.B. 933 against the property of Mullendore and other resident taxpayers of the school districts. If taxes levied against the property of resident taxpayers have been paid, a declaration of unconstitutionality would resolve a real or actual controversy between the school districts and their resident taxpayers. On the assumption that taxes have been collected, an action for declaratory judgment is not moot, since a declaration of unconstitutionality may entitle an individual taxpayer to a refund of taxes paid....

....

The record before us raises a question of fact regarding the viability of an action for declaratory judgment, which question underlies the substantive constitutional claims asserted by Mullendore. The school districts' introduction of a copy of [§ 79-4,102], repealing its predecessor, L.B. 933, did not satisfy the burden of showing that no viable cause of action survived repeal of L.B. 933. The district court erred in summarily dismissing Mullendore's action for declaratory judgment.

(Emphasis supplied.) Mullendore I, 223 Neb. at 37-38, 388 N.W.2d at 100-01. Therefore, we reversed the district court's decision as erroneous in the determination that Mullendore's claim was moot and remanded the cause for further proceedings.

A brief summary of L.B. 933 is found in our opinion rendered in Mullendore I, 223 Neb. at 30, 388 N.W.2d at 96:

L.B. 933, which became effective on July 1, 1982, was enacted as part of a statutory scheme for computing and allocating nonresident high school tuition rates. Under such scheme the parent or guardian of any high school age pupil residing in a school district which does not maintain a high school grade [a "Class I" or "sending school district"] may apply for nonresident high school tuition privileges to districts maintaining such grade [a "receiving school district"]. [Citations omitted.] By L.B. 933, a school district which decided to receive nonresident high school pupils computed a nonresident tuition rate and certified that rate to the superintendent of the county where the pupils resided. L.B. 933 allowed a receiving school district to set the high school tuition rate on a "uniform taxation basis." The rate to be certified by a receiving school district was "any amount decided by the receiving board but not less than the per pupil cost [nor more than] one hundred twenty-five pert cent of the computed rate." Eventually the board of equalization for the resident county levied a tax on "the actual value of all the taxable property" in the county, which taxes are collectible by the county treasurer and distributable to the receiving school districts.

On remand, the parties stipulated that the case be tried solely on evidence contained in certain exhibits received at trial on December 12, 1986. These exhibits included various versions of L.B. 933, as it evolved during the 1982 legislative session, and the appropriate parts of the legislative history for the bill. The evidence also included a list of property owners in Lancaster County, indicating individuals who owned property in Class I (or "sending") school districts within the county. Mullendore was listed as a property owner in a Class I school district.

The district court interpreted our opinion in Mullendore I to the effect that constitutionality of L.B. 933 was "a valid issue even though repealed by the passage of [§ 79-4,102] in 1984." The court then found that L.B. 933 contained an unconstitutional delegation of legislative authority in violation of article II, § 1, and article III, § 1, of the Nebraska Constitution and that the bill contained more than one subject contrary to article III, § 14, of the Nebraska Constitution. As a result of those findings, the district court declared L.B. 933 (§ 79-4,102 (Cum.Supp.1982)) unconstitutional.

The school districts contend that the district court erred in (1) failing to determine that the matter was moot; (2) determining that Mullendore was entitled to declaratory relief; (3) finding that Mullendore had presented a prima facie case entitling him to declaratory relief; and (4) determining that Mullendore had standing to assert his claims. The school districts also contend that the district court's determination of the substantive constitutional issues is erroneous. Mullendore cross-appeals, claiming that the district court should have added one more ground for declaring L.B. 933 unconstitutional, namely, passage of the bill violated article III, § 14, of the Nebraska Constitution insofar as the bill was passed within 5 days of its introduction.

Mullendore brought his action under Nebraska's Uniform Declaratory Judgments Act, Neb.Rev.Stat. §§ 25-21,149 et seq. (Reissue 1985), which includes: "Any person ... whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a...