Project Extra Mile v. Nebraska Liquor Control Comm.

their concern for the welfare of their child. Each subjected
the other to unnecessary travel and expense. We conclude that
having imposed a compensatory sanction upon Vaelizadeh for
his contempt, the district court abused its discretion in not
imposing a similar sanction upon Hossaini for her subsequent,
comparable contempt.
CONCLUSION
The district court did not abuse its discretion in finding both
parties in contempt of orders pertaining to parenting time; nor
did it abuse its discretion in imposing a monetary sanction
against Vaelizadeh for his contempt. However, for the reasons
discussed, the court did abuse its discretion in not impos-
ing a monetary sanction against Hossaini for her contempt.
Accordingly, we affirm the judgment of the district court in
case No. S-11-509. In case No. S-11-508, we affirm the finding
of contempt, but reverse, and remand to the district court with
directions to determine the appropriate sanction to be imposed
for Hossaini’s contempt.
Judgment in no. S-11-508 affirmed in
part and in part reverSed, and cauSe
remanded with directionS.
Judgment in no. S-11-509 affirmed.
proJect extra mile et al ., appelleeS, v. nebraSka
liquor control commiSSion and hobert rupe ,
itS executive director , appellantS.
810 N.W.2d 149
Filed March 2, 2012. 	No. S-11-157.
1. Administrative Law: Judgments: Appeal and Error. In an appeal under the
Administrative Procedure Act, an appellate court may reverse, vacate, or modify
the judgment of the district court for errors appearing on the record.
2. Appeal and Error. An appellate court independently reviews a lower court’s rul-
ings on questions of law.
3. Statutes. Statutory interpretation presents a question of law.
4. Standing: Jurisdiction: Parties. A party’s standing to commence an action pre-
sents a jurisdictional issue.
PrOjECT ExTrA MILE v. NEbrASkA LIqUOr CONTrOL COMM. 	379
Cite as 283 Neb. 379
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

5. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional
questions that do not involve a factual dispute as a matter of law.
6. Administrative Law: Standing. Generally, Neb. rev. Stat. § 84-911 (reissue
2008) requires a plaintiff to have common-law standing to challenge an agency’s
regulation or its threatened application.
7. Actions: Taxation: Injunction. A resident taxpayer, without showing any inter-
est or injury peculiar to itself, may bring an action to enjoin the illegal expendi-
ture of public funds raised for governmental purposes.
8. Declaratory Judgments. Neb. rev. Stat. § 84-911 (reissue 2008) does not limit
a plaintiff to seeking only declaratory relief.
9. Declaratory Judgments: Pleadings. When a plaintiff’s pleadings in a declara-
tory judgment action put the defendant on notice of the remedy sought, a court
may order relief that is clearly within the scope of its declaratory judgment.
10. Immunity: Declaratory Judgments. The only limitations placed on the relief
that a plaintiff can obtain in a declaratory judgment action authorized under Neb.
rev. Stat. § 84-911 (reissue 2008) are the limitations imposed by sovereign
immunity principles.
11. Immunity: Public Officers and Employees. State sovereign immunity does not
bar actions to restrain state officials or to compel them to perform an act they are
legally required to do unless the prospective relief would require them to expend
public funds.
12. Immunity: Public Officers and Employees: Declaratory Judgments:
Injunction. Neither Neb. rev. Stat. § 84-911 (reissue 2008) nor sovereign
immunity bars injunctive relief in a declaratory judgment action authorized
by § 84-911 when such relief would not require state officials to expend pub-
lic funds.
13. Actions: Taxation. A taxpayer’s interest in challenging an unlawful state action
must exceed the common interest of all taxpayers in securing obedience to
the law.
14. Taxation: Equity. Taxpayers have an equitable interest in public funds, including
state public funds.
15. Actions: Taxation: Standing: Proof: Public Officers and Employees. A tax-
payer 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 dis-
cretion 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.
16. Administrative Law: Taxation: Standing. In an action brought under Neb. rev.
Stat. § 84-911 (reissue 2008), a taxpayer has standing to challenge an agency’s
unlawful regulation that negates the agency’s statutory duty to assess taxes.
17. ____: ____: ____. 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.
18. Administrative Law: Statutes. A rule of deferring to agency interpretations
does not apply when the agency’s regulation contravenes the plain language of its
governing statutes.
380 	283 NEbrASkA rEPOrTS

19. Administrative Law: Courts: Statutes: Appeal and Error. In determining
whether an agency’s governing statute is ambiguous, an appellate court is guided
by its own principles of statutory construction.
20. Statutes. A statute is ambiguous when the language used cannot be adequately
understood from the plain meaning of the statute or when considered in pari
materia with any related statutes.
21. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an
appellate court gives words in a statute their ordinary meaning.
22. Statutes: Legislature: Intent: Appeal and Error. In construing a statute,
an appellate court determines and gives effect to the legislative intent behind
the enactment.
23. Statutes: Legislature: Intent. Components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and should be conjunc-
tively considered and construed to determine the intent of the Legislature, so that
different provisions are consistent, harmonious, and sensible.
24. Administrative Law: Liquor Licenses: Statutes: Legislature: Intent. Under
the Nebraska Liquor Control Act, the Legislature did not intend for a beer prod-
uct to include beverages containing distilled alcohol in an amount constituting up
to 49 percent of the total alcohol content.
25. Administrative Law. An administrative agency is limited in its rulemaking
authority to powers granted to the agency by the statutes which it is to administer.
It may not employ its rulemaking power to modify, alter, or enlarge portions of its
enabling statute.
26. ____. An administrative agency has no power or authority other than that specifi-
cally conferred by statute or by construction necessary to accomplish the plain
purpose of the act.
27. ____. An administrative agency cannot employ its rulemaking authority to adopt
regulations contrary to the statutes that it is empowered to enforce.
Appeal from the District Court for Lancaster County: John
a. colborn, judge. Affirmed.
jon bruning, Attorney General, and Milissa johnson-Wiles
for appellants.
Vincent 	M. 	Powers 	and 	Amanda 	M. 	Lightner, 	Senior
Certified Law Student, of Vincent M. Powers & Associates,
for appellees.
Marc E. Sorini and jeffrey W. Mikoni, of McDermott, Will
& Emery, L.L.P., and james P. Fitzgerald, of McGrath, North,
Mullin & kratz, P.C., L.L.O., for amicus curiae Flavored Malt
beverages Coalition.
heavican, c.J., connolly, gerrard, Stephan, mccormack ,
and miller-lerman, JJ.
PrOjECT ExTrA MILE v. NEbrASkA LIqUOr CONTrOL COMM. 	381
Cite as 283 Neb. 379

connolly, J.
I. SUMMArY
We are asked to decide whether a flavored malt beverage
is a beer or spirit under the Nebraska Liquor Control Act.1
It makes a difference. beer is taxed at 31 cents per gallon;
spirits are taxed at $3.75 per gallon. The question presented
is not whether the Legislature could classify and tax bever-
ages containing distilled alcohol as beer. It could. The question
is whether the Nebraska Liquor Control Commission and its
executive director (collectively the Commission) exceeded its
statutory authority in classifying and taxing these beverages as
beer despite legislative inaction.
The Commission argues two issues: First, it contends that
the district court erred in concluding that the appellees had
standing to challenge its regulation. Second, it contends that
the court erred in ruling that flavored malt beverages are spirits
under the Nebraska Liquor Control Act.
We conclude that appellee Mary Doghman had taxpayer
standing. The court correctly determined that the Commission
exceeded its statutory authority by classifying and taxing fla-
vored malt beverages as beer. The Nebraska Liquor Control
Act plainly defines spirits as beverages that contain alcohol
obtained by distillation. Up to 49 percent of the alcohol in fla-
vored malt beverages is distilled alcohol. Therefore, a flavored
malt beverage is a spirit. We affirm.
II. bACkGrOUND
1. procedural hiStory
Of the four appellees in this case, three are Nebraska non-
profit organizations: Project Extra Mile, the Public Health
Association 	of 	Nebraska, 	and 	Pride-Omaha, 	Inc. 	(collec-
tively the nonprofits). The other appellee, Doghman, is a resi-
dent taxpayer.
The appellees alleged that Doghman had taxpayer stand-
ing because the Commission had spent public funds and
would 	spend 	public 	time 	and 	money 	to 	implement 	and
enforce an unlawful classification. They also alleged that the
1 See Neb. rev. Stat. §§ 53-101 to 53-1,122 (reissue 2010 & Supp. 2011).
382 	283 NEbrASkA rEPOrTS

classification would result in reduced tax revenues for the
State; thus, it would increase the tax burden for Doghman and
other taxpayers.
The appellees further alleged that the nonprofits had stand-
ing because of their status as Nebraska nonprofit corporations.
The appellees’ only factual allegations of injury from the regu-
lation referred to Project Extra Mile’s organizational purpose.
They alleged that Project Extra Mile’s primary mission and
purpose was to address the issue of underage drinking. And
they alleged that the Commission’s actions would harm Project
Extra Mile’s mission.
The appellees sought a declaration that the Commission’s
regulations were illegal and void because the Commission had
exceeded its authority under the Nebraska Liquor Control Act
by classifying flavored malt beverages as beer. The appellees
also sought a writ of mandamus compelling the Commission
to classify and tax flavored malt beverages as spirits instead
of beer.
The Commission moved to dismiss the action. It argued
that (1) the appellees lacked standing, (2) sovereign immunity
barred their action, and (3) a writ of mandamus was not an
appropriate remedy.
The court ruled that Doghman had standing as a resident
taxpayer to challenge the classification because she had alleged
an illegal expenditure of public funds. It also ruled that she did
not have to make a demand on the Commission before bringing
her action because the demand would be useless.
In ruling that the nonprofits had representative standing, the
court relied on the U.S. Supreme Court’s decision in Hunt v.
Washington Apple Advertising Comm’n.2 The court reasoned
that the nonprofits’ members would have standing as resident
taxpayers, the same as Doghman. The court, however, ruled
that sovereign immunity barred the appellees’ request for a writ
of mandamus and dismissed that claim.
In their amended complaint, the appellees sought only a
declaration that the regulation was invalid under the Nebraska
2 Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 97 S. Ct.
2434, 53 L. Ed. 2d 383 (1977).
PrOjECT ExTrA MILE v. NEbrASkA LIqUOr CONTrOL COMM. 	383
Cite as 283 Neb. 379

Liquor Control Act. In its answer, the Commission affirma-
tively alleged that the appellees lacked standing and had failed
to state a cause of action. It also alleged that the court lacked
subject matter jurisdiction over any claim against its direc-
tor. Finally, it alleged that the Commission’s regulations were
within the Commission’s statutory authority.
2. court’S order
The court found that the nonprofits were all seeking to pre-
vent underage alcohol consumption. It again ruled that all the
appellees had standing.
The court also ruled that the Commission’s disputed regula-
tion, 237 Neb. Admin. Code, ch. 1, § 009.01 (2009), violated
the plain language of § 53-103(2) (Cum. Supp. 2008) of the
Nebraska Liquor Control Act, which defines “spirits.” The
disputed regulation adopted federal regulations issued by the
Alcohol and Tobacco Tax and Trade bureau (the TTb) of
the U.S. Treasury Department. The federal regulations per-
mitted products that contained both fermented alcohol and
distilled alcohol to be classified as malt beverages. The court
rejected the Commission’s argument that the Nebraska Liquor
Control Act’s definition of beer could include the federal
regulatory definition of flavored malt beverages. It concluded
that these beverages were clearly “spirits” under the Nebraska
Liquor Control Act because they were a beverage that con-
tained alcohol obtained by distillation, mixed with water and
other substances.
III. ASSIGNMENTS OF ErrOr
The Commission assigns that the court erred in overruling its
motion to dismiss the appellees’ complaint because Doghman
and the nonprofits lack standing to challenge the Commission’s
regulation. The Commission also assigns that the court erred
in declaring that flavored malt beverages are spirits under the
Nebraska Liquor Control Act and that the Commission had
exceeded its authority in promulgating the regulation.
IV. STANDArD OF rEVIEW
[1-5] In an appeal under the Administrative Procedure Act,
an appellate court may reverse, vacate, or modify the judgment
384 	283 NEbrASkA rEPOrTS

of the district court for errors appearing on the record.3 but
we independently review a lower court’s rulings on questions
of law.4 Statutory interpretation presents a question of law.5 A
party’s standing to commence an action presents a jurisdic-
tional issue.6 And we determine jurisdictional questions that do
not involve a factual dispute as a matter of law.7
V. ANALYSIS
1. Standing
The Commission argues that the court erred in conclud-
ing that Doghman and the nonprofits had standing to chal-
lenge its regulation. but because we conclude that Doghman
has taxpayer standing to assert this claim, it is unnecessary
for us to consider whether the nonprofits also have stand-
ing.8 We address only the Commission’s arguments regarding
Doghman’s standing.
Under Neb. rev. Stat. § 84-911(1) (reissue 2008), “[t]he
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.”
[6,7] 	Generally, 	§ 	84-911 	requires 	a 	plaintiff 	to 	have
common-law standing to challenge an agency’s regulation
3 Tymar v. Two Men and a Truck, 282 Neb. 692, 805 N.W.2d 648 (2011);
Nebraska Pub. Advocate v. Nebraska Pub. Serv. Comm., 279 Neb. 543, 779
N.W.2d 328 (2010).
4 See Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010).
5 Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395
(2011).
6 See, id.; Countryside Co-op v. Harry A. Koch Co., 280 Neb. 795, 790
N.W.2d 873 (2010).
7 See Brook Valley Ltd. Part. v. Mutual of Omaha Bank, 281 Neb. 455, 797
N.W.2d 748 (2011).
8 See, Watt v. Energy Action Educational Foundation, 454 U.S. 151, 102 S.
Ct. 205, 70 L. Ed. 2d 309 (1981), citing Arlington Heights v. Metropolitan
Housing Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977), and
Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).
PrOjECT ExTrA MILE v. NEbrASkA LIqUOr CONTrOL COMM. 	385
Cite as 283 Neb. 379

or its threatened application.9 Common-law standing usually
requires a litigant to demonstrate an injury in fact that is actual
or imminent.10 but a resident taxpayer, without showing any
interest or injury peculiar to itself, may bring an action to
enjoin the illegal expenditure of public funds raised for gov-
ernmental purposes.11 Here, the issue is whether we should
recognize the taxpayer exception to common-law standing
requirements under § 84-911. The Commission argues that we
should not.
First, the Commission argues that we have recognized tax-
payer standing only when the taxpayer seeks to enjoin an
illegal expenditure of public funds. Second, it argues that in
challenges to an agency’s regulations, § 84-911 authorizes a
plaintiff to seek only declaratory relief, not injunctive relief.
Thus, it argues that Doghman cannot have taxpayer stand-
ing under § 84-911 because our case law precludes her from
seeking anything but injunctive relief, which is not permitted
under § 84-911.
(a) § 84-911 Does Not Limit Plaintiffs
to Declaratory relief
[8,9] Section 84-911 does not limit a plaintiff to seeking
only declaratory relief. It provides that a plaintiff may chal-
lenge the validity of a rule or regulation in a declaratory judg-
ment action. We have held that § 84-911 provides a limited
waiver of sovereign immunity that permits a court to determine
the validity of administrative rules and regulations.12 but when
a plaintiff’s pleadings in a declaratory judgment action put
the defendant on notice of the remedy sought, a court may
order relief that is clearly within the scope of its declaratory
9 See H.H.N.H., Inc. v. Department of Soc. Servs., 234 Neb. 363, 451
N.W.2d 374 (1990).
10 See, Frenchman-Cambridge Irr. Dist. v. Dept. of Nat. Res., 281 Neb. 992,
801 N.W.2d 253 (2011); Middle Niobrara NRD v. Department of Nat.
Resources, 281 Neb. 634, 799 N.W.2d 305 (2011); Schauer v. Grooms, 280
Neb. 426, 786 N.W.2d 909 (2010).
11 Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776
(2006).
12 Galyen v. Balka, 253 Neb. 270, 570 N.W.2d 519 (1997).
386 	283 NEbrASkA rEPOrTS

judgment.13 Enjoining a government entity or official from
enforcing a regulation that the court has declared invalid would
obviously be within the scope of the court’s declaratory judg-
ment. And under Neb. rev. Stat. § 25-21,156 (reissue 2008),
even if a party’s requested relief is not within the scope of a
court’s declaratory judgment, the court can grant such relief if
the plaintiff applies for supplemental relief.14
[10,11] So when § 84-911 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 authorized under § 84-911 are the limitations imposed
by sovereign immunity principles. but state sovereign immu-
nity does not bar actions to restrain state officials or to compel
them to perform an act they are legally required to do unless the
prospective relief would require them to expend public funds.15
The Commission’s statutory argument is without merit.
(b) Taxpayers Can Seek Declaratory relief
in an Action Against a State Agency
Contrary to the Commission’s contention, we have permitted
a taxpayer to seek declaratory relief in an action against state
officials when the taxpayer alleged an unauthorized expend-
iture of public funds.16 The appellees also correctly contend
that in Chambers v. Lautenbaugh,17 we held that a taxpayer has
standing to seek declaratory relief. The defendant in Chambers
specifically claimed on appeal that the plaintiff lacked taxpayer
standing to seek a declaratory judgment. We rejected that argu-
ment. The Commission points to no case in which we have
held that a plaintiff can only seek injunctive relief in an action
against state officials if the plaintiff relies on taxpayer standing
to bring the action.
13 Wetovick, supra note 4.
14 See id.
15 See, Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010);
Johnson v. Clarke, 258 Neb. 316, 603 N.W.2d 373 (1999).
16 See Myers, supra note 11. See, also, Chambers v. Lautenbaugh, 263 Neb.
920, 644 N.W.2d 540 (2002).
17 Chambers, supra note 16.
PrOjECT ExTrA MILE v. NEbrASkA LIqUOr CONTrOL COMM. 	387
Cite as 283 Neb. 379

[12] It is true that the action in Chambers was not brought
under § 84-911. but recognizing the taxpayer exception to
standing requirements under § 84-911 is consistent with the
reason for recognizing taxpayer standing in Chambers and in
other actions brought against state officials. If state agencies
could unlawfully promulgate rules that waste public funds
with impunity, following the law would be “irrelevant to those
entrusted to uphold it.”18 We hold that neither § 84-911 nor
sovereign immunity bars injunctive relief in a declaratory judg-
ment action authorized by § 84-911 when such relief would not
require state officials to expend public funds.
(c) Taxpayers Can Challenge an Unlawful regulation
That reduces State revenues in Contravention
of an Agency’s Governing Statutes
The only remaining issue is whether a taxpayer has standing
to assert a claim that a state agency has unlawfully promul-
gated a rule that results in reduced tax revenues. As noted, the
Commission also argues that the mere promulgation of a rule
is not an expenditure of public funds. A complaint’s allegations
are normally insufficient to confer taxpayer standing if the
taxpayer alleges a general interest common to all members of
the public.19 Our decision in Chambers,20 however, supports a
conclusion that a resident taxpayer has standing to challenge a
state action that allegedly violates statutory law as an unlawful
expenditure or waste of public funds.
In Chambers, the plaintiff sought injunctive relief and a
declaration that the Douglas County election commissioner
had exceeded his statutory authority in redrawing the legis-
lative districts for Omaha’s city council elections. The trial
court determined that the commissioner had acted lawfully. On
appeal, we concluded that the plaintiff had standing because he
had alleged an illegal expenditure of public funds. We pointed
to the following allegations:
18 Rath v. City of Sutton, 267 Neb. 265, 281, 673 N.W.2d 869, 885 (2004).
19 See State ex rel. Reed v. State, 278 Neb. 564, 773 N.W.2d 349 (2009).
20 Chambers, supra note 16.
388 	283 NEbrASkA rEPOrTS

[The plaintiff] alleges, “Employees in the office of the
Douglas County Election Commission have spent and will
spend in the future public time and money to implement
the new district boundary lines, when such new boundary
lines are not authorized by law.” Finally, in his prayer for
relief, [the plaintiff] asks the district court to “declar[e]
that the commitment of employee time and the expendi-
ture of tax monies for such purposes is unlawful and not
authorized by law . . . .”21
The county election commissioner’s alleged misapplication
of state statutes in Chambers is the same as the appellees’
claim that the Commission promulgated a rule in contraven-
tion of its governing statutes. In both cases, the allegation is
that a statutorily created official or government entity took
an unlawful action under its governing statutes. So, under
Chambers, preventing the use of public time and money to
implement and enforce allegedly invalid rules is a sufficient
interest to confer taxpayer standing to challenge the rules.
In other cases, however, we have held that a claim of unau-
thorized government action is insufficient to confer taxpayer
standing when the plaintiff has not shown an individualized
injury in fact.22
This conflict occurs because of the competing considerations
frequently presented by taxpayer actions. Primarily, govern-
ment officials must perform their duties without fear of being
sued whenever a taxpayer disagrees with their exercise of
authority.23 but courts also recognize that a taxpayer may be
the only party who would challenge an unlawful government
action because the persons or organizations directly affected by
the government action have benefited from it.24 Additionally,
a taxpayer’s action sometimes raises matters of great public
21 Id. at 928, 644 N.W.2d at 548.
22 See, e.g., Neb. Against Exp. Gmblg. v. Neb. Horsemen’s Assn., 258 Neb.
690, 605 N.W.2d 803 (2000); Ritchhart v. Daub, 256 Neb. 801, 594
N.W.2d 288 (1999).
23 See State ex rel. Reed, supra note 19.
24 See, Ritchhart, supra note 22; Sprague v. Casey, 520 Pa. 38, 550 A.2d 184
(1988).
PrOjECT ExTrA MILE v. NEbrASkA LIqUOr CONTrOL COMM. 	389
Cite as 283 Neb. 379

concern that far exceed the type of injury in fact that an indi-
vidual could normally assert in an action against government
officials or entities.25
These competing concerns explain the tension between
Chambers and our cases holding that an allegation of unlawful
government action is insufficient to show an illegal expenditure
of public funds. Arguably, Chambers would have been more
correctly presented as raising a matter of great public concern:
If true, the county election commissioner’s alleged statutory
violation would have unlawfully altered the way that the city’s
residents elected their city council representatives. but we need
not resolve here the tension between Chambers and our cases
requiring a plaintiff to show an illegal expenditure of public
funds. Instead, our conclusion that Doghman has standing
rests on her allegation that under the disputed regulation, the
Commission has failed to assess state taxes required under its
governing statutes.
[13] We reaffirm our previous holding that a taxpayer’s
interest in challenging an unlawful state action must exceed
the common interest of all taxpayers in securing obedience
to the law.26 but the reason for permitting taxpayer actions
challenging an unlawful expenditure of public funds exists
here. A good deal of unlawful government action would other-
wise go unchallenged.27 And a claim that state officials have
unlawfully expended public funds mirrors a claim that state
officials have failed to impose or collect statutorily required
taxes. both claims alleged an unlawful act that depletes the
State’s coffers.
[14] We have held that taxpayers have an equitable inter-
est in public funds, including state public funds.28 And we
25 Cunningham v. Exxon, 202 Neb. 563, 276 N.W.2d 213 (1979).
26 See, Neb. Against Exp. Gmblg., supra note 22; Consumer Party of
Pennsylvania v. Com., 510 Pa. 158, 507 A.2d 323 (1986), abrogated on
other grounds, PA Against Gambling Expansion Fund v. Com., 583 Pa.
275, 877 A.2d 383 (2005).
27 Sprague, supra note 24.
28 See, Rath, supra note 18; Rein v. Johnson, 149 Neb. 67, 30 N.W.2d 548
(1947).
390 	283 NEbrASkA rEPOrTS

have held that a taxpayer can challenge the tax-exempt sta-
tus of another property when the taxpayer can show that
public officials have a clear duty to tax the property.29 Most
important, denying taxpayer standing here would mean that
a government entity’s unlawful failure to impose taxes on,
or collect taxes from, favored individuals or organizations is
unreviewable in court: The only persons or groups directly
affected by the government action would have no incentive to
challenge it.
[15-17] We hold that 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 dis-
cretion to decide whether to tax.30 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.31 In an action brought
under § 84-911, this rule means a taxpayer has standing to
challenge an agency’s unlawful regulation that negates the
agency’s statutory duty to assess taxes. We further hold that 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 immedi-
ately affected by the alleged violation are beneficially, instead
of adversely, affected.32
Doghman 	has 	met 	this 	burden. 	She 	alleged 	that 	the
Commission’s regulation is contrary to the statutory taxation
requirements for flavored malt beverages. And because the
parties most directly affected by the regulation are beneficially
29 Compare State v. Drexel, 75 Neb. 751, 107 N.W. 110 (1906), with
McClellan v. Board of Equal. of Douglas Cty., 275 Neb. 581, 748 N.W.2d
66 (2008).
30 See Drexel, supra note 29. Accord, Vasquez v. State of California, 105
Cal. App. 4th 849, 129 Cal. rptr. 2d 701 (2003); Sonoma Cty. v. State Bd.
of Equalization, 195 Cal. App. 3d 982, 241 Cal. rptr. 215 (1987); Mtr
of Dudley v Kerwick, 52 N.Y.2d 542, 421 N.E.2d 797, 439 N.Y.S.2d 305
(1981).
31 See, Ritchhart, supra note 22; Consumer Party of Pennsylvania, supra note
26.
32 See Consumer Party of Pennsylvania, supra note 26.
PrOjECT ExTrA MILE v. NEbrASkA LIqUOr CONTrOL COMM. 	391
Cite as 283 Neb. 379

affected, they have no incentive to challenge it. No better
suited party exists to assert the public’s interests in challenging
the Commission’s alleged failure to assess statutorily required
taxes. The court did not err in ruling that Doghman had tax-
payer standing to challenge the regulation.
2. the commiSSion’S regulationS exceeded
itS Statutory authority
We come at last to the merits of the case. The Commission’s
disputed regulation states the following: “For the purpose
of the classification of flavored malt beverages, the . . .
Commission shall utilize the same classification as adopted
by the [TTb] found at 27 CFr Parts 7 and 25 . . . which went
into effect january 3, 2006.”33 As the TTb’s regulations show,
the Commission’s adoption of the federal regulations through
its own regulation permits beverages containing a significant
amount of distilled alcohol (up to 49 percent of the alcohol
content) to be classified as beer under the Nebraska Liquor
Control Act. The court ruled that the Commission’s classifica-
tion violated the plain language of the Nebraska Liquor Control
Act (hereinafter the Act) because such beverages were clearly
spirits under those statutes.
At the heart of our inquiry is whether the Commission’s
adoption of federal regulations that classify flavored malt bev-
erages as beer is permitted under the Act’s definition of beer
or whether under the Act, the beverages must be classified as
spirits. In short, the Act defines beer as a “beverage obtained
by alcoholic fermentation”34 and spirits as a “beverage which
contains alcohol obtained by distillation.”35
(a) The TTb’s regulations
The TTb amended two parts of its regulations, parts 7 and
25, to permit beverages containing ingredients with distilled
alcohol to be produced in breweries and marketed as beer
products. Part 7 deals with the labeling and advertising of
33 237 Neb. Admin. Code, ch. 1, § 009.01.
34 § 53-103(4) (Cum. Supp. 2008) (now codified as § 53-103.03).
35 § 53-103(2) (now codified as § 53-103.38).
392 	283 NEbrASkA rEPOrTS

malt beverages.36 Part 25 deals with the operation of brewer-
ies.37 The TTb amended part 25 to allow breweries to use
“flavors and other nonbeverage ingredients containing alco-
hol” to contribute up to 49 percent of the alcohol content of
a finished beer product.38 It similarly amended part 7 of its
regulations so that the definition of malt beverages would
include beverages produced with distilled alcohol ingredients,
contributing up to 49 percent of the total alcohol content in
the beverages.39
The regulations specified that the distilled alcohol in these
beverages is “from the addition of flavors and other nonbever-
age ingredients containing alcohol.”40 Neither part 7 nor part
25 of the TTb’s regulations defines “flavors” or “alcohol.” but
in other parts of its regulations, the TTb defines alcohol as
distilled alcohol.41 In addition, the comments to its final rule
amending these regulations provide a description of the pro-
duction process. Importantly, the description clarifies that the
“flavorings” that producers are permitted to add to these bever-
ages contain distilled spirits:
Although flavored malt beverages are produced at
breweries, their method of production differs signifi-
cantly from the production of other malt beverages and
beer. In producing flavored malt beverages, brewers brew
a fermented base of beer from malt and other brewing
materials. brewers then treat this base using a variety of
processes in order to remove the malt beverage charac-
ter from the base. For example, they remove the color,
bitterness, and taste generally associated with beer, ale,
porter, stout, and other malt beverages. This leaves a
base product to which brewers add various flavors, which
36 See 27 C.F.r., part 7 (2011).
37 See id., part 25.
38 Id., § 25.15(b) at 681.
39 Id., § 7.11(a)(1).
40 See id. at 92-93.
41 See id., §§ 1.10 and 4.10.
PrOjECT ExTrA MILE v. NEbrASkA LIqUOr CONTrOL COMM. 	393
Cite as 283 Neb. 379

typically contain distilled spirits, to achieve the desired
taste profile and alcohol level.42
(b) The Parties’ Contentions
The Commission contends that the court incorrectly ruled
that its regulation violated the plain language of the Act. The
Commission stipulated that under its adoption of the TTb’s
regulations, up to 49 percent of the alcohol content in flavored
malt beverages may be flavorings with distilled alcohol. but it
contends that it could properly classify the TTb’s definition of
a “malt beverage” as beer under the Act. It argues that the beer
classification is permitted because the distilled alcohol in these
beverages comes from flavorings and other nonbeverage ingre-
dients, not from the direct addition of distilled spirits. It cites
the TTb regulations that specifically prohibit the products from
being labeled or advertised in a manner that gives the impres-
sion that they contain distilled spirits.
Additionally, the Commission argues that even if flavored
malt beverages could be classified as spirits under the Act, they
could also be classified as beer because they are a hybrid; i.e.,
they contain both fermented alcohol and distilled alcohol. The
Commission argues that the court conceded in its order that
these beverages could be classified as either beer or spirits. So
the Commission argues that its regulation cannot be invalid. It
cites a case in which we deferred to an agency’s interpretation
of a statute that the agency was charged with enforcing.
The appellees contend that it is irrelevant that the beverages
satisfy the TTb’s regulations because the beverages are clearly
distilled spirits under the Act. We agree.
(c) Analysis
(i) No Deference Is Afforded the Commission’s
Interpretation of the Act
We reject the Commission’s argument that we should defer
to its interpretation of the Act. It is true that we have occa-
sionally stated the following rule: “Although construction of a
42 See Flavored Malt beverage and related regulatory Amendments
(2002r-044P), 70 Fed. reg. 195 (jan. 3, 2005) (emphasis supplied).
394 	283 NEbrASkA rEPOrTS

statute by a department charged with enforcing it is not con-
trolling, considerable weight will be given to such a construc-
tion. This is particularly so when the Legislature has failed to
take any action to change such an interpretation.”43 but this
rule was obviously not intended to permit agencies to adopt
regulations that directly conflict with the Legislature’s decision
not to adopt the rules that the agency purports to find through
statutory interpretation. That happened here.
In 2005, the General Affairs Committee of the Legislature
voted to amend the definition of beer to conform to the TTb’s
approved regulations by adding “flavored malt beverages” to
the definition of beer. Additionally, that bill would have spe-
cifically provided that a “[f]lavored malt beverage means a
beer that derives not more than forty-nine percent of its total
alcohol content from flavors or flavorings containing alcohol
obtained by distillation.”44 The TTb regulations were approved
in December 2004 and took effect in january 2006.45 but the
General Affairs Committee’s proposed bill was indefinitely
postponed in April 2006.46 In August 2006, the Commission
announced that it would adopt the TTb’s regulations. The
Attorney General approved the regulation in 2009.
This history does not show the Legislature’s acquiescence
in an agency’s interpretation of its governing statutes. On
the contrary, it shows an agency’s attempt to achieve through
regulations what the Legislature declined to enact through
proposed statutory amendments. We are not inclined to give
any deference to the Commission’s interpretation of its govern-
ing statutes.
[18] More important, a rule of deferring to agency interpre-
tations does not apply when the agency’s regulation contra-
venes the plain language of its governing statutes. We make
43 See Capitol City Telephone v. Nebraska Dept. of Rev., 264 Neb. 515, 527,
650 N.W.2d 467, 477 (2002).
44 See First reading, L.b. 563, General Affairs Committee, 99th Leg., 1st
Sess. (january 18, 2005).
45 See Flavored Malt beverage and related regulatory Amendments
(2002r-044P), supra note 42.
46 Legislative journal, 99th Leg., 2d Sess. 1726 (Apr. 13, 2006).
PrOjECT ExTrA MILE v. NEbrASkA LIqUOr CONTrOL COMM. 	395
Cite as 283 Neb. 379

independent conclusions on the meaning and interpretation of
statutes.47 Thus, we have stated that deference to an agency’s
interpretation of its governing statutes is improper when the
statutes are unambiguous:
[W]hile we agree that an administrative agency’s inter-
pretation of a statute may be helpful to this court when
reaching its independent conclusion concerning the mean-
ing of a statute, this court has long held: “‘resort to con-
temporaneous construction of a statute by administrative
bodies is neither necessary nor proper where the language
used is clear, or its meaning can be ascertained by the use
of intrinsic aids alone.’”48
So any deference that we afford an agency’s interpretation of
its governing statutes does not apply when we can clearly dis-
cern the Legislature’s intent and whether an agency’s regula-
tions are contrary to that intent. Contrary to the Commission’s
arguments, these statutes are not ambiguous.
(ii) The Act Unambiguously Requires Flavored Malt
Beverages to Be Classified as Spirits
[19,20] In determining whether an agency’s governing stat-
ute is ambiguous, we are guided by our own principles of statu-
tory construction.49 A statute is ambiguous when the language
used cannot be adequately understood from the plain meaning
of the statute or when considered in pari materia with any
related statutes.50
[21-23] Absent a statutory indication to the contrary, we
give words in a statute their ordinary meaning.51 In construing
a statute, we determine and give effect to the legislative intent
47 See, e.g., Cotton v. State, 281 Neb. 789, 810 N.W.2d 132 (2011).
48 Ameritas Life Ins. v. Balka, 257 Neb. 878, 888, 601 N.W.2d 508, 515
(1999). See, also, Cox Cable of Omaha v. Nebraska Dept. of Revenue, 254
Neb. 598, 578 N.W.2d 423 (1998).
49 See Cox Cable of Omaha, supra note 48.
50 See Agena v. Lancaster Cty. Bd. of Equal., 276 Neb. 851, 758 N.W.2d 363
(2008).
51 City of North Platte v. Tilgner, 282 Neb. 328, 803 N.W.2d 469 (2011).
396 	283 NEbrASkA rEPOrTS

behind the enactment.52 Components of a series or collection
of statutes pertaining to a certain subject matter are in pari
materia and should be conjunctively considered and construed
to determine the intent of the Legislature, so that different pro-
visions are consistent, harmonious, and sensible.53
The Commission’s argument that these beverages can be
classified as beer conflicts with both the plain language of the
Act’s definition of beer and the Legislature’s intent to exclude
beverages containing a significant amount of distilled alcohol
from the definition of beer. This intent is clear when the Act’s
provisions are read consistently.
First, we reject the Commission’s argument that these bev-
erages can be classified as beer because they also contain
fermented alcohol. Even if distilled spirits are only indirectly
added to the beverages through “flavorings” during production,
the Act does not define beer to include beverages that contain
distilled alcohol. Instead, the Act defines beer to mean a “bev-
erage obtained by alcoholic fermentation of an infusion or con-
coction of barley or other grain, malt, and hops in water and
includes, but is not limited to, beer, ale, stout, lager beer, por-
ter, and near beer.”54 Even though this list of beer products is
not exclusive, a beverage containing alcohol obtained through
fermentation—not distillation—is obviously the definitive cri-
teria for beer under the Act.
In contrast, the Act defines spirits to mean “any beverage
which contains alcohol obtained by distillation, mixed with
water or other substance in solution, and includes brandy, rum,
whiskey, gin, or other spirituous liquors and such liquors when
rectified, blended, or otherwise mixed with alcohol or other
substances.”55 The Act’s definition of spirits is not limited to
beverage solutions containing the direct addition of distilled
spirits. It includes any beverage solution containing distilled
52 In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011), cert. denied
___ U.S. ___, 132 S. Ct. 341, 181 L. Ed. 2d 214.
53 Travelers Indem. Co. v. Gridiron Mgmt. Group, 281 Neb. 113, 794 N.W.2d
143 (2011).
54 § 53-103(4) (now codified as § 53-103.03).
55 § 53-103(2) (now codified as § 53-103.38) (emphasis supplied).
PrOjECT ExTrA MILE v. NEbrASkA LIqUOr CONTrOL COMM. 	397
Cite as 283 Neb. 379

alcohol. When this definition is read consistently with a statu-
tory exception for alcohol used in flavorings, the definition of
spirits includes any beverage containing more than an insignifi-
cant amount of alcohol used for flavoring.
As the Commission argues, the Act does not apply to alcohol
in products such as flavoring extracts and food products unfit
for beverages.56 The Flavored Malt beverages Coalition, as
amicus curiae, argues that many beers and soft drinks contain
small amounts of alcohol because these flavorings are added.
The coalition further argues that unlike most states, Nebraska’s
statutes do not have a minimum threshold of alcohol content
that a beverage may contain without being classified as an
alcoholic beverage. So the coalition contends that the court’s
judgment will require all beverages containing even insignifi-
cant amounts of distilled alcohol to be classified and taxed as
spirits. We disagree.
Despite the Act’s exception for flavoring extracts and food
products unfit for beverages, the same section specifically pro-
vides that the Act applies to alcohol used to make confections
and candy if the alcohol content exceeds one-half percent of
the product’s ingredients.57 This section of the Act shows that
the Legislature did not intend the Act to apply to insignificant
amounts of distilled alcohol used for flavoring, but that it did
intend for it to apply if a significant amount of distilled alcohol
was used for flavoring.
So if the court had ruled that an insignificant amount of
distilled alcohol used for flavoring in a beer product did not
render the beverage a spirit, we would agree that this was a rea-
sonable interpretation of the Act. but the court was not asked
to decide that question. And the Act cannot be reasonably inter-
preted as permitting the alcohol in a beer product to have up to
49 percent distilled alcohol.
[24] In sum, in reading the Act’s provisions consistently, it
is obvious that the Legislature did not intend for a beer product
to include beverages containing distilled alcohol in an amount
constituting up to 49 percent of the total alcohol content.
56 See § 53-103(5) (now codified as § 53-103.02(2)).
57 See id.
398 	283 NEbrASkA rEPOrTS

because the TTb regulations describe flavored malt beverages
as a solution containing fermented alcohol and the distilled
alcohol in these beverages is not an insignificant amount
used for flavoring, the beverages clearly fall within the Act’s
definition of spirits. Moreover, contrary to the Commission’s
argument, the court did not concede that flavored malt bever-
ages could be classified as either beer or wine. That argument
takes the court’s statement out of context. Its order simply
reflects its decisionmaking process. It reached the same deci-
sion that we reach here. The statutes are not ambiguous when
read consistently.
(iii) The Commission Exceeded Its Authority
[25,26] An administrative agency is limited in its rulemaking
authority to powers granted to the agency by the statutes which
it is to administer. It may not employ its rulemaking power to
modify, alter, or enlarge portions of its enabling statute.58 It has
no power or authority other than that specifically conferred by
statute or by construction necessary to accomplish the plain
purpose of the act.59
Section 	53-117(2) 	gives 	the 	Commission 	the 	following
power:
To fix by rules and regulations the standards of manu-
facture of alcoholic liquor not inconsistent with federal
laws in order to [e]nsure the use of proper ingredients
and methods in [such] manufacture . . . . The Legislature
intends, by the grant of power to adopt and promulgate
rules and regulations, that the commission have broad dis-
cretionary powers to govern the traffic in alcoholic liquor
and to enforce strictly all provisions of the act in the
interest of sanitation, purity of products, truthful repre-
sentations, and honest dealings in a manner that generally
will promote the public health and welfare.
(Emphasis supplied.) While the Legislature has given the
Commission broad discretion to promulgate regulations, it
58 Upper Big Blue NRD v. State, 276 Neb. 612, 756 N.W.2d 145 (2008);
Scofield v. State, 276 Neb. 215, 753 N.W.2d 345 (2008).
59 See Murray v. Neth, 279 Neb. 947, 783 N.W.2d 424 (2010).
PrOjECT ExTrA MILE v. NEbrASkA LIqUOr CONTrOL COMM. 	399
Cite as 283 Neb. 379

clearly intended the Commission to exercise that discretion to
strictly enforce the Act for the public’s benefit.
[27] We note that the comments to the TTb regulations
show that the federal agency did not intend to preempt state
law.60 but even if a change in Nebraska’s laws were neces-
sary to avoid a conflict with federal law, the decision to make
that change falls to the Legislature. An administrative agency
cannot employ its rulemaking authority to adopt regulations
contrary to the statutes that it is empowered to enforce. We
conclude that the court correctly ruled that the Commission
had exceeded its statutory authority.
VI. CONCLUSION
We conclude that the court correctly ruled that Doghman
had taxpayer standing to challenge the Commission’s regula-
tion. We hold that the taxpayer standing rules apply to a declar-
atory judgment action authorized by § 84-911. We expand the
rule that a taxpayer may seek to enjoin state officials from
unlawfully expending public funds to permit a taxpayer in an
action brought under § 84-911 to challenge an agency’s failure
to comply with a clear statutory duty to assess or collect taxes.
but the taxpayer must show that no other potential party is
better suited to challenge the rule. Here, the only persons or
entities directly affected by the Commission’s regulation were
beneficially affected by it and had no incentive to challenge it.
So no better suited party existed to assert the public’s interests
in having the Commission comply with its duty to assess statu-
torily required taxes.
The court correctly determined that the Commission had
exceeded its statutory authority in classifying flavored malt
beverages as beer. We give no deference to the Commission’s
interpretation of these statutes because they are unambigu-
ous. The statutory definition of beer is limited to beverages
that contain alcohol obtained by fermentation. In contrast, the
statutory definition of spirits includes any beverage that con-
tains distilled alcohol. When these sections of the Act are read
60 Flavored 	Malt 	beverage 	and 	related 	regulatory 	Amendments
(2002r-044P), supra note 42.
400 	283 NEbrASkA rEPOrTS

consistently with an exception for alcohol used in flavorings,
the Act unambiguously required the Commission to define
any beverage containing more than an insignificant amount
of distilled alcohol used for flavoring as a “spirit” and to tax
it accordingly.
affirmed.
gerrard, j., not participating in the decision.
wright, j., not participating.
State of nebraSka ex rel . counSel for diScipline
of the nebraSka Supreme court, relator , v.
paul w. Seyler , reSpondent.
809 N.W.2d 766
Filed March 2, 2012. 	No. S-11-252.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. 	____. The basic issues in a disciplinary proceeding against an attorney are
whether discipline should be imposed and, if so, the type of discipline appropriate
under the circumstances.
3. ____. Neb. Ct. r. § 3-304 provides that attorney misconduct shall be grounds for
disbarment, suspension, probation in lieu of or subsequent to suspension, censure
and reprimand, or temporary suspension by the court, or private reprimand by the
Committee on Inquiry or Disciplinary review board.
4. ____. To determine whether and to what extent discipline should be imposed in
an attorney discipline proceeding, the Nebraska Supreme Court considers the fol-
lowing factors: (1) the nature of the offense, (2) the need for deterring others, (3)
the maintenance of the reputation of the bar as a whole, (4) the protection of the
public, (5) the attitude of the offender generally, and (6) the offender’s present or
future fitness to continue in the practice of law.
5. ____. The determination of an appropriate penalty to be imposed on an attorney
in a disciplinary proceeding requires the consideration of any aggravating or
mitigating factors.
6. ____. With respect to the imposition of attorney discipline in an individual case,
the Nebraska Supreme Court evaluates each attorney discipline case in light of its
particular facts and circumstances.
7. ____. In an attorney disciplinary proceeding, it is necessary to consider the dis-
cipline that the Nebraska Supreme Court has imposed in cases presenting simi-
lar circumstances.
Original action. judgment of suspension.
STATE Ex rEL. COUNSEL FOr DIS. v. SEYLEr 	401
Cite as 283 Neb. 401