§ 84-911 — Validity of rule or regulation; declaratory judgment; procedure

Nebraska § 84-911

• Jurisdiction: Nebraska
• Ch. 84: State Officers

Text

(1) The validity of any rule or regulation may be determined upon a petition for a declaratory judgment if it appears that the rule or regulation or its threatened application interferes with or impairs or threatens to interfere with or impair the legal rights or privileges of the petitioner. The petition shall be filed in the district court for any county in which venue is proper under subsection (3) of this section. The agency shall be made a party to the proceeding. The declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule or regulation in question.
(2)(a) The court shall declare the rule or regulation invalid if it finds that it violates constitutional provisions, exceeds the statutory authority of the agency, or was adopted without compliance with the statutory procedures.
(b) For purposes of this subsection, statutory procedures shall not include procedures provided under the Negotiated Rulemaking Act.
(3) Venue for filing a petition under this section shall be proper in any of the following counties in Nebraska:
(a) The county where the petitioner resides;
(b) The county where the petitioner's principal place of business is located;
(c) Lancaster County; or
(d) The county in which the agency has its headquarters.
(4) An agency shall not take any action to restrict venue in contravention of this section.

Legislative History

Source: Laws 1959, c. 456, § 4, p. 1511; Laws 1987, LB 253, § 13; Laws 1994, LB 446, § 34; Laws 2025, LB660, § 36. Operative Date: May 21, 2025 Cross References: Negotiated Rulemaking Act, see section 84-921. Annotations: 1. Scope of relief 2. Standing 3. Declaratory judgment, denied 4. Miscellaneous 1. Scope of relief An agency policy that does not constitute a rule or regulation under section 84-901(2) is not subject to judicial review under this section. Schaeffer v. Frakes, 313 Neb. 337, 984 N.W.2d 290 (2023). When this section is read consistently with the declaratory judgment statutes, the only limitations placed on the relief that a plaintiff can obtain in a declaratory judgment action under this section are the limitations imposed by sovereign immunity principles. Neither this section nor sovereign immunity bars injunctive relief in a declaratory judgment action under this section when such relief would not require state officials to expend public funds. Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810 N.W.2d 149 (2012). This section provides a limited statutory waiver of sovereign immunity and confers subject matter jurisdiction for a declaratory judgment concerning the validity of a state agency's rule or regulation, but does not confer jurisdiction for declaratory relief concerning judicial interpretation of a statute. Perryman v. Nebraska Dept. of Corr. Servs., 253 Neb. 66, 568 N.W.2d 241 (1997). This section provides a limited statutory waiver of sovereign immunity and confers subject matter jurisdiction for a declaratory judgment concerning the validity of a state agency's rule or regulation. This section is limited to judicial determination of the validity of any rule or regulation of a state agency and does not confer jurisdiction for judicial resolution of a factual question pertaining to the merits of a controversy. Riley v. State, 244 Neb. 250, 506 N.W.2d 45 (1993). 2. Standing Citizens lacked standing under the Administrative Procedure Act to challenge the validity of a regulation where they alleged an infringement of a procedural right to informed participation in the regulation-making process but did not show that the challenged regulation itself threatened or violated their rights. Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 (2019). Common-law exceptions to injury-in-fact standing do not apply in actions brought under the Administrative Procedure Act provision that permits the validity of any rule or regulation to be determined upon a petition for declaratory judgment if it appears that the rule or regulation or its threatened application interferes with legal rights or privileges of the petitioner, overruling Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810 N.W.2d 149 (2012). Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 (2019). A taxpayer has standing to challenge a state official's failure to comply with a clear statutory duty to assess or collect taxes—as distinguished from legitimate discretion to decide whether to tax. But the taxpayer must show that the official's unlawful failure to comply with a duty to tax would otherwise go unchallenged because no other potential party is better suited to bring the action. Under this section, a taxpayer has standing to challenge an agency's unlawful regulation that negates the agency's statutory duty to assess taxes. No other potential parties are better suited than a taxpayer to claim that a state agency or official has violated a statutory duty to assess taxes when the persons or entities directly and immediately affected by the alleged violation are beneficially, instead of adversely, affected. Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810 N.W.2d 149 (2012). 3. Declaratory judgment, denied The trial court lacked subject matter jurisdiction over an inmate's Administrative Procedure Act claim, because the inmate challenged the Department of Correctional Services' interpretation of state law relating to sentencing calculations, rather than the validity of any agency rule or regulation or its application. Williams v. Frakes, 315 Neb. 379, 996 N.W.2d 498 (2023). A court may refuse to enter a declaratory judgment on the validity of an administrative rule when the petition essentially presents a claim against the state for money. Millard School District v. State Department of Education, 202 Neb. 707, 277 N.W.2d 71 (1979). A prisoner is not entitled to a declaratory judgment under this section as to the validity of a regulation limiting the amount of property that can be possessed by an inmate, because a prisoner does not enjoy the unqualified right to possess property while in prison. Meis v. Houston, 19 Neb. App. 504, 808 N.W.2d 897 (2012). 4. Miscellaneous Under this section, which allows for a declaratory judgment on the validity of an administrative rule, such a ruling is discretionary with the court. A court may refuse to enter a declaratory judgment where it would not end or resolve the controversy. Beatrice Manor v. Department of Health, 219 Neb. 141, 362 N.W.2d 45 (1985).