Mullendore v. School Dist. No. 1 of Lancaster County, 85-055

Citation388 N.W.2d 93,223 Neb. 28
Decision Date06 June 1986
Docket NumberNo. 85-055,85-055
Parties, 32 Ed. Law Rep. 1058 Robert A. MULLENDORE, on Behalf of Himself and All Others Similarly Situated, Appellant and Cross-Appellee, v. SCHOOL DISTRICT NO. 1 OF LANCASTER COUNTY, Nebraska, et al., Appellees and Cross-Appellants, Richard Nuernberger, County Treasurer of Lancaster County, Nebraska, Appellee.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Declaratory Judgments. The purpose of the Uniform Declaratory Judgments Act, Neb.Rev.Stat. §§ 25-21,149 et seq. (Reissue 1985), is to provide a procedure for speedy determination of issues which would otherwise be delayed to the possible injury of the parties.

2. Declaratory Judgments: Statutes. An action for a declaratory judgment is an appropriate remedy to determine the validity, construction, or interpretation of a statute.

3. 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.

4. Declaratory Judgments. A decision to entertain an action for declaratory relief is discretionary with a trial court.

5. Declaratory Judgments. Availability of other remedies is a factor bearing upon a trial court's discretionary decision whether to entertain an action for a declaratory judgment. Thus, a trial court may, at its discretion, refuse to entertain an action for declaratory judgment where another equally serviceable remedy has been provided by law.

6. Declaratory Judgment: Constitutional Law: Taxes: Statutes. A declaratory judgment is an appropriate method to challenge constitutionality of a tax statute.

7. Moot Question: Courts. A "moot case" is one which seeks to determine an abstract question which does not rest on existing facts or rights. In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. The province of a court is to decide real controversies and to determine rights actually controverted, and judicial power does not extend to the determination of abstract questions.

8. Summary Judgment. Summary judgment may be properly granted where there exists no genuine issue as to any material fact in the case, the ultimate inferences to be drawn from those facts are clear, and the moving party is entitled to judgment as a matter of law.

9. Summary Judgment. In considering a motion for summary judgment, a court views the evidence in the light most favorable to the party against whom such motion is directed, giving that party the benefit of all favorable inferences that may be drawn therefrom.

10. Summary Judgment. The party moving for summary judgment has the burden of showing that no genuine issue as to any material fact exists; that party must therefore produce enough evidence to demonstrate his entitlement to a judgment if the evidence remains uncontroverted, after which the burden of producing contrary evidence shifts to the party opposing the motion.

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

James B. Gessford of Perry, Perry, Witthoff, Guthery, Haase & Gessford, P.C., Lincoln, for appellees and cross-appellants School Districts.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

Robert A. Mullendore commenced a class action in the district court for Lancaster County, seeking a declaratory judgment that Neb.Rev.Stat. § 79-4,102 (Cum.Supp.1982) [1982 Neb. Laws, L.B. 933] is unconstitutional and an injunction prohibiting Lancaster County Treasurer Richard Nuernberger and various Lancaster County area school districts from operating under the questioned statute. The district court overruled a demurrer by the school districts but granted the school districts' motion for summary judgment, finding that Mullendore's action was rendered moot by the enactment, in July 1984, of 1984 Neb. Laws, L.B. 930 [§ 79-4,102 (Cum.Supp.1984) ], which explicitly repealed L.B. 933. Mullendore appeals from that summary judgment. The school districts cross-appeal the overruling of their demurrer. Defendant Nuernberger did not join in the demurrer or motion for summary judgment, and Mullendore's action remains pending against Nuernberger.

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 may apply for nonresident high school tuition privileges to districts maintaining such grade. See Neb.Rev.Stat. §§ 79-494 et seq. (Reissue 1981). 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 percent 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. See Neb.Rev.Stat. §§ 79-436 and 79-437 (Reissue 1981). L.B. 933 authorized a taxpayer's appeal from the board of equalization's action, that is, an appeal in the manner provided in Neb.Rev.Stat. §§ 77-1606 to 77-1610 (Reissue 1981).

Mullendore alleges that he is a resident of Lancaster County and an owner of property which is located in a Lancaster County Class I school district and which is subject to taxation for nonresident high school tuition. See § 79-436. Mullendore also alleges he brings the action for himself and as a class action on behalf and for the benefit of all owners of taxable property located in Lancaster County Class I school districts. See Neb.Rev.Stat. § 25-319 (Reissue 1985). In his amended petition filed on June 20, 1983, Mullendore, "on behalf of himself and all others similarly situated," asserted two causes of action regarding L.B. 933. Pursuant to Neb.Rev.Stat. §§ 25-21,149 et seq. (Reissue 1985), Mullendore first sought declaratory judgment that L.B. 933 was unconstitutional, contending, in part, that the statute improperly delegated legislative authority to a receiving school district and the State Department of Education; permitted a receiving school district to establish nonresident tuition rates in excess of the per pupil cost of providing high school education; and conferred a special privilege or amenity upon a receiving school district by allowing distribution of taxes levied and collected for nonresident high school tuition, notwithstanding a taxpayer's appeal challenging the legality of such taxes. In his second cause of action, Mullendore asked for a permanent injunction prohibiting Nuernberger, as county treasurer, from collecting and distributing nonresident tuition taxes determined to be void and a permanent injunction prohibiting the school districts from establishing nonresident tuition rates under L.B. 933. Mullendore's amended petition did not allege that taxes for the questioned nonresident tuition had in fact been levied and collected as authorized by L.B. 933.

The school districts demurred, claiming that each of Mullendore's two causes of action failed to state sufficient facts. See Neb.Rev.Stat. § 25-806(6) (Reissue 1985). The court overruled the school districts' demurrer.

The Unicameral subsequently enacted L.B. 930, supplying the current statute, § 79-4,102 (Cum.Supp.1984), which became effective on July 10, 1984. That statute explicitly repealed L.B. 933 and provided a different method for determining the nonresident tuition rate. Under § 79-4,102 (Cum.Supp.1984) the finance division of the State Department of Education determines the nonresident high school tuition rate and certifies that rate to a receiving school district, which may reduce the figure to an amount not "less than the per pupil cost in the district."

After enactment of L.B. 930 in 1984, the defendant school districts moved for summary judgment, claiming that passage of L.B. 930 rendered Mullendore's action moot. At a hearing held on August 22, 1984, the school districts, as part of an affidavit, introduced a copy of L.B. 930, which, together with the pleadings, constituted the only evidence before the court for the purpose of the summary judgment sought by the school districts. The court granted a summary judgment and dismissed both causes of action, stating:

[T]here are no genuine issues of material fact and ... defendants are entitled to judgment as a matter of law. L.B. 933 which plaintiff seeks to enjoin and have declared unconstitutional no longer exists and therefore for purposes of a declaratory judgment action and an injunction action this case is moot.

Mullendore contends the district court erred in finding both of his causes of action were rendered moot by enactment of § 79-4,102 (Cum.Supp.1984). In their cross-appeal the school districts maintain that the court erred in overruling their demurrer, contending that neither a declaratory judgment nor an injunction is the appropriate method to question the constitutionality of L.B. 933.

We first consider the school districts' contention that their demurrer should have been sustained regarding Mullendore's first...

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