Pettit v. Nebraska Dept. of Corr. Servs.

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291 Nebraska reports
PETTIT v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 291 Neb. 513
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
M ark pettit, appellee , v. Nebraska D epartMeNt
of C orreCtioNal serviCes aND
fraNk HopkiNs , appellaNts .
867 N.W.2d 553
Filed August 7, 2015. 	No. S-14-676.
1. Declaratory Judgments. An action for declaratory judgment is sui
generis; whether such action is to be treated as one at law or one in
equity is to be determined by the nature of the dispute.
2. Statutes. Statutory interpretation presents a question of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
4. Declaratory Judgments: Appeal and Error. In a declaratory judgment
action treated as an action at law, an appellate court does not disturb
factual determinations unless they are clearly wrong.
5. Prisoners: Records: Good Cause: Appeal and Error. Whether a per-
son seeking access to an inmate’s institutional file under Neb. Rev. Stat.
§ 83-178 (Reissue 2014) shows good cause is a mixed question of law
and fact. What the parties show presents questions of fact, which an
appellate court reviews for clear error. Whether the showing establishes
good cause is a question of law, and an appellate court reviews questions
of law independently. Where the facts are undisputed, the entire question
becomes one of law.
6. Statutes: Legislature: Intent: Appeal and Error. Statutory language
is to be given its plain and ordinary meaning, and an appellate court’s
duty in discerning the meaning of a statute is to determine and give
effect to the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordinary, and
popular sense.
7. Statutes: Actions: Legislature: Intent. Whether a statute creates a
private right of action depends on the statute’s purpose and whether the
Legislature intended to create a private right of action.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:30 AM CST

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PETTIT v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 291 Neb. 513
8. Prisoners: Records: Good Cause: Legislature: Intent: Words and
Phrases. For purposes of Neb. Rev. Stat. § 83-178(2) (Reissue 2014),
“good cause” means a logical or legally sufficient reason in light of all
of the surrounding facts and circumstances and in view of the very nar-
row access intended by the Legislature.
Appeal from the District Court for Lancaster County: steveN
D. burNs, Judge. Reversed and remanded with directions.
Jon Bruning, Attorney General, and James D. Smith for
appellants.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellee.
H eaviCaN, C.J., WrigHt, C oNNolly, MCC orMaCk , M iller-
lerMaN, and Cassel , JJ.
Cassel , J.
INTRODUCTION
The district court determined that Mark Pettit showed “good
cause”1 for public inspection and reproduction of an executed
inmate’s drawings placed by the Nebraska Department of
Correctional Services (DCS) in the inmate’s institutional file.
DCS and Frank Hopkins appeal. We first settle the standard
of appellate review, reviewing the factual findings for clear
error and the existence of good cause as a question of law.
We then examine the entire statute, recognizing its emphasis
of confidentiality rather than openness. Finally, we define
the phrase in view of the entire statute. We conclude that the
undisputed facts present a question of law and that Pettit failed
to demonstrate a legally sufficient reason for inspection of
the drawings.
BACKGROUND
Pettit, a former anchorman and investigative reporter for an
Omaha, Nebraska, television station, reported on the murders
1 See Neb. Rev. Stat. § 83-178(2) (Reissue 2014).

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PETTIT v. NEBRASKA DEPT. OF CORR. SERVS.
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committed by John Joubert of two children in 1983 in Sarpy
County, Nebraska. Joubert pled guilty to two counts of first
degree murder and was sentenced to death. The State ulti-
mately executed him.
While Joubert was on death row, Pettit interviewed him a
number of times. Pettit was then in the process of writing a
book in order to have a historical record about the Joubert case.
During the interviews, Joubert confessed to a string of violent
crimes and admitted that he continued to have fantasies about
murdering children. Joubert told Pettit that he illustrated those
fantasies in two graphic drawings that had been confiscated
as contraband by authorities with DCS. The drawings were
placed in Joubert’s institutional file maintained by DCS under
§ 83-178.
Before Joubert was executed, Pettit attempted to gain access
to the drawings. In 1988, Joubert handed Pettit a letter that he
had written to the prison warden authorizing the release of the
drawings to Pettit for analysis by a mental health professional.
The body of the letter stated:
Please release to . . . Pettit of KMTV, Channel 3, the
two drawings which were confiscated from my cell on
05 May 87. He intends to take them to a psychiatrist for
analysis. At this time there is no agreement for them to be
used in the book he is writing, but that may change in the
future. Thank you.
The warden refused to release the drawings to Pettit, citing
pending appeals of Joubert’s convictions. For the next 25
years, the status quo continued.
In 2013, with the 30th anniversary of Joubert’s crimes
approaching, Pettit requested access to the drawings for inspec-
tion and reproduction. DCS refused to permit Pettit to inspect
the drawings, stating that the drawings had been placed in
Joubert’s institutional file and were not subject to further dis-
closure by DCS except as provided by § 83-178.
Pettit filed a complaint for declaratory judgment against
DCS and Hopkins, its acting director. Pettit asked the court to
declare that the drawings were not protected by the provisions

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PETTIT v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 291 Neb. 513
of § 83-178 or, to the extent that they were subject to § 83-178,
to declare that good cause existed for inspection and reproduc-
tion by Pettit. In their responsive pleading, DCS and Hopkins
alleged that Pettit lacked good cause for accessing the draw-
ings and that he had presented no authorization for Joubert’s
personal property to be turned over to him.
During trial, the district court heard testimony in favor of
and against making the drawings available for public inspec-
tion. Pettit wished to inspect the drawings because Joubert
believed that he was “‘gonna walk out of this prison’” and
said that he was making drawings about killing more chil-
dren. Pettit believed the drawings showed that something was
“deeply wrong” with Joubert. Pettit wanted to have the draw-
ings analyzed by a forensic psychiatrist and to take them to the
behavioral science unit at the Federal Bureau of Investigation.
He felt the drawings were “significant,” “historical,” and “edu-
cational.” The Sarpy County Attorney—who formerly inves-
tigated the Joubert case as chief deputy and counsel with the
Sarpy County Sheriff’s Department—testified in support of
Pettit’s request. He thought it was a good idea for Pettit to
have access to the drawings because “it rounds out the case
. . . , and it’s a topic of discussion and . . . it’s important that
people—the public know and understand real things happen,
they know the facts.” But the director of DCS did not feel
Joubert’s drawings should be released, stating that he did not
believe any social benefit of the drawings would outweigh the
harm they might cause.
The district court entered judgment ordering “[DCS] and
those in its employ” to permit Pettit to inspect, examine, and
reproduce the drawings. The court determined that the draw-
ings were subject to restricted access, because they fell within
the statute as material that reflected on Joubert’s background,
conduct, and associations. The court then considered whether
good cause had been shown for inspection of the drawings by
Pettit. The court stated:
That the request for inspection is not being made for
the purpose of distribution to the inmate population or

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PETTIT v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 291 Neb. 513
to those who routinely associate with inmates weighs
in favor of good cause. These drawings are nearly 30
years old. The inmate who made them is no longer alive.
The purpose of the requested inspection appears to be
legitimate. The court accepts that the drawings may be
useful to law enforcement officers in further understand-
ing the psychology of serial killers; at least those similar
to Joubert.
The court also noted that before he was executed, Joubert did
not object to the inspection. The court stated that an objection
would have weighed against good cause. The court reasoned
that the possibility of reproductions of the drawings appearing
in a future publication of Pettit’s book did not weigh in favor of
or against good cause, but that the nature of the drawings was a
factor against good cause. Ultimately, the court concluded that
good cause had been shown for inspection and reproduction of
the drawings by Pettit.
A timely appeal followed, and we moved the case to our
docket.2
ASSIGNMENT OF ERROR
DCS assigns that the district court erred in ordering “[DCS]
and those in its employ” to permit Pettit to inspect, examine,
and reproduce the confiscated drawings of Joubert.
STANDARD OF REVIEW
[1] An action for declaratory judgment is sui generis; whether
such action is to be treated as one at law or one in equity is to
be determined by the nature of the dispute.3 To the extent that
§ 83-178(2) may create a special civil statutory remedy, it is
more akin to an action at law.4
[2,3] The parties agree upon a standard of review, but we
conclude that it is incomplete. They assert, and we agree,
2 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
3 Christiansen v. County of Douglas, 288 Neb. 564, 849 N.W.2d 493 (2014).
4 See In re Interest of D.I., 281 Neb. 917, 799 N.W.2d 664 (2011).

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PETTIT v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 291 Neb. 513
that statutory interpretation presents a question of law.5 And
we have often said that when reviewing questions of law, an
appellate court has an obligation to resolve the questions inde-
pendently of the conclusion reached by the trial court.6
We agree that we must independently determine the mean-
ing of the statute as a whole and, in particular, the phrase “for
good cause shown.”7 But once we have defined the term in
light of the entire statute, this standard does not instruct us
regarding our review of the district court’s application of the
definition to the facts presented in this specific instance.
Although we have previously considered whether “good
cause” existed under § 83-178, we did not articulate the appro-
priate standard of review. In State v. Vela,8 we considered
whether the prosecution had good cause to obtain access to a
defendant’s mental health records that were in DCS’ posses-
sion. The defendant objected to the release of any medical and
psychological records. We held that good cause existed when
the defendant in a capital sentencing proceeding placed his or
her mental health at issue by asserting mental retardation as a
basis for precluding the death penalty or by asserting mental
illness as a mitigating circumstance. Because we concluded
that the district court did not “err,” it would appear that we did
not employ a review for abuse of discretion.9
[4] But State v. Vela presented the question within the
framework of an existing criminal case. Here, Pettit brought a
declaratory judgment action for the sole and only purpose of
viewing and reproducing Joubert’s drawings. In a declaratory
judgment action treated as an action at law, an appellate court
does not disturb factual determinations unless they are clearly
5 In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007).
6 See id.
7 § 83-178(2).
8 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
9 Id. at 141, 777 N.W.2d at 301.

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wrong.10 But we have never held that § 83-178 creates a civil
statutory remedy available to the public at large.
Nor does it appear that the Nebraska appellate courts have
ever articulated a standard for an appellate court’s review of a
lower court’s determination of the existence or nonexistence
of good cause. This is more complicated than it may seem.
The existence of good cause surely depends upon the factual
circumstances. This suggests that some deference to the lower
court is appropriate. But the critical question is how far this
deference extends. And the dictates of a standard of review
often prove dispositive.
Case law from other jurisdictions yields little help. In the
context of unemployment compensation, for example, at least
one jurisdiction has stated that the existence of good cause is
a question of fact,11 but others have held that it is a question
of law,12 while yet others have determined it to be a mixed
question of law and fact.13 Florida courts have variously held
the question to be one of fact, strictly one of law, and a mixed
question of law and fact.14 Rhode Island recognizes the issue
as a mixed question of law and fact, but has clarified that the
determination of good cause will be made as a matter of law
10 Glad Tidings v. Nebraska Dist. Council, 273 Neb. 960, 734 N.W.2d 731
(2007).
11 See, Claim of Christophides, 243 A.D.2d 807, 662 N.Y.S.2d 625 (1997);
Sandler v. Catherwood, 22 A.D.2d 740, 253 N.Y.S.2d 328 (1964).
12 See, e.g., Cooper v U of M, 100 Mich. App. 99, 298 N.W.2d 677 (1980);
Goodwin v. BPS Guard Services, Inc., 524 N.W.2d 28 (Minn. App. 1994);
Mo. Div of Employment Sec. v. Labor & Indus., 616 S.W.2d 138 (Mo.
App. 1981); McPherson v. Employment Division, 285 Or. 541, 591 P.2d
1381 (1979).
13 See, e.g., Board of Educ., Mont. Co. v. Paynter, 303 Md. 22, 491 A.2d
1186 (1985); Snyder v. Virginia Employment Com’n, 23 Va. App. 484, 477
S.E.2d 785 (1996).
14 See Tourte v. Oriole of Naples, Inc., 696 So. 2d 1283 (Fla. App. 1997)
(collecting cases).

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PETTIT v. NEBRASKA DEPT. OF CORR. SERVS.
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when the facts may lead only to one reasonable conclusion.15
Utah has stated that a determination of good cause is a mixed
question of law and fact, but that the determination is more
fact-like in nature.16
[5] We hold that whether a person seeking access to an
inmate’s institutional file under § 83-178 shows good cause
is a mixed question of law and fact. What the parties show
presents questions of fact, which we review for clear error. But
whether the showing establishes good cause is a question of
law. As noted above, an appellate court reviews questions of
law independently. Thus, where the facts are undisputed, the
entire question becomes one of law.
ANALYSIS
We now turn to an examination of the controlling statute.
Section 83-178 states:
(1) The 	director 	shall 	establish 	and 	maintain, 	in
accordance with the regulations of the department, an
individual file for each person committed to the depart-
ment. Each individual file shall include, when avail-
able 	and 	appropriate, 	the 	following 	information 	on
such person:
(a) His or her admission summary;
(b) His or her presentence investigation report;
(c) His or her classification report and recommendation;
(d) Official records of his or her conviction and com-
mitment as well as any earlier criminal records;
(e) Progress reports and admission-orientation reports;
(f) Reports of any disciplinary infractions and of their
disposition;
(g) His or her parole plan; and
15 See D’Ambra v. Board of Review, 517 A.2d 1039 (R.I. 1986). See, also,
Murphy v. Fascio, 115 R.I. 33, 340 A.2d 137 (1975).
16 See Sawyer v. Department of Workforce Services, 345 P.3d 1253 (Utah
2015).

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(h) Other pertinent data concerning his or her back-
ground, conduct, associations, and family relationships.
(2) Any decision concerning the classification, reclas-
sification, transfer to another facility, preparole prepa-
ration, or parole release of a person committed to the
department shall be made only after his or her file has
been reviewed. The content of the file shall be confiden-
tial and shall not be subject to public inspection except
by court order for good cause shown and shall not be
accessible to any person committed to the department. An
inmate may obtain access to his or her medical records
by request to the provider pursuant to sections 71-8401
to 71-8407 notwithstanding the fact that such medical
records may be a part of his or her individual department
file. The department retains the authority to withhold
mental health and psychological records of the inmate
when appropriate.
(3) The program of each person committed to the
department shall be reviewed at regular intervals and
recommendations shall be made to the chief executive
officer concerning changes in such person’s program of
treatment, training, employment, care, and custody as are
considered necessary or desirable.
(4) The chief executive officer of the facility shall have
final authority to determine matters of treatment clas-
sification within his or her facility and to recommend to
the director the transfer of any person committed to the
department who is in his or her custody.
(5) The director may at any time order a person com-
mitted to the department to undergo further examination
and study for additional recommendations concerning
his or her classification, custodial control, and rehabilita-
tive treatment.
(6) Nothing in this section shall be construed to limit in
any manner the authority of the Public Counsel to inspect
and examine the records and documents of the depart-
ment pursuant to sections 81-8,240 to 81-8,254, except

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PETTIT v. NEBRASKA DEPT. OF CORR. SERVS.
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that the Public Counsel’s access to an inmate’s medical
or mental health records shall be subject to the inmate’s
consent. The office of Public Counsel shall not disclose
an inmate’s medical or mental health records to anyone
else, including any person committed to the department,
except as authorized by law.
(Emphasis supplied.)
[6] Although the parties have focused on the empha-
sized language of § 83-178(2), we examine the entire statute
and apply the usual principles of statutory interpretation.
Statutory language is to be given its plain and ordinary mean-
ing, and an appellate court’s duty in discerning the meaning
of a statute is to determine and give effect to the purpose
and intent of the Legislature as ascertained from the entire
language of the statute considered in its plain, ordinary, and
popular sense.17
Numerous features of § 83-178 caution that the Legislature
intended the remedy of subsection (2) to apply only in very
narrow circumstances. First, subsection (2) declares that the
content of the file is confidential. These are not “open”
records. This contrasts markedly with the provisions gener-
ally governing access to public records.18 Second, subsection
(1) catalogs the required contents of an institutional file. And
virtually all of these documents or materials are confidential
in nature or by law. For example, the file contains an inmate’s
presentence report, which another statute expressly protects
from public disclosure.19 Third, DCS’ use of the materi-
als is driven by penological purposes. The first sentence of
17 Village of Hallam v. L.G. Barcus & Sons, 281 Neb. 516, 798 N.W.2d 109
(2011).
18 See Neb. Rev. Stat. § 84-712 et seq. (Reissue 2014).
19 See Neb. Rev. Stat. § 29-2261(6) (Cum. Supp. 2014) (“presentence report
or psychiatric examination shall be privileged and shall not be disclosed
directly or indirectly to anyone other than a judge, probation officers to
whom an offender’s file is duly transferred, the probation administrator or
his or her designee, or others entitled by law to receive such information”).

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subsection (2) mandates that before undertaking any decision
involving an inmate’s classification, transfer, or release, prison
officials must review the institutional file. Subsections (3),
(4), and (5) focus entirely on internal prison matters regard-
ing the particular inmate. Fourth, the statute’s confidentiality
provision was evidently considered so comprehensive and
robust that in 2001, the Legislature deemed it necessary to
expressly provide the Public Counsel—a state officer already
empowered with broad investigative authority20—with limited
access to the materials.21 The “good cause” exception of sub-
section (2) must be viewed in the light of this rigorous statu-
tory scheme.
[7] 	Moreover, 	we 	have 	considerable 	doubt 	that 	the
Legislature intended to create a private right of action enforce-
able by a declaratory judgment. Whether a statute creates a
private right of action depends on the statute’s purpose and
whether the Legislature intended to create a private right of
action.22 First, § 83-178(2) does not authorize the director
of DCS to unilaterally grant the privilege of inspection to a
member of the public. Rather, the inspection may be allowed
only by “court order.” Thus, the remedy is clearly not directed
toward review of a decision by the director—rather, the direc-
tor has no discretion under the statute to allow public inspec-
tion. Second, the statutory language does not expressly create
a private right of action. Third, the language seems calculated
to apply in the context of an existing court proceeding, hav-
ing a separate purpose or right of action, where the material
in the institutional file would serve as evidence. But this issue
was not raised in the district court. Thus, for purposes of this
opinion, we assume without deciding that a private right of
action exists.
20 See Neb. Rev. Stat. § 81-8,240 et seq. (Reissue 2014).
21 See 2001 Neb. Laws, L.B. 15, § 1.
22 Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777, 826 N.W.2d 225
(2012).

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We now turn to the specific provision stating, “The content
of the file shall be confidential and shall not be subject to
public inspection except by court order for good cause shown
and shall not be accessible to any person committed to the
department.”23 Our decision in State v. Vela24 did not define the
phrase “for good cause shown.”25 Thus, we must determine its
meaning in this particular context.
In other contexts, this court and the Nebraska Court of
Appeals have quoted a dictionary definition of “good cause”
as “‘a cause or reason sufficient in law; one that is based on
equity or justice or that would motivate a reasonable man
under all the circumstances.’”26 And we have declared that
the meaning of good cause must be determined in light of all
of the surrounding circumstances.27 In the context of a statute
concerning vacating an order in a formal testacy proceeding,28
we stated that good cause meant “a logical reason or legal
ground, based on fact or law, why an order should be modified
or vacated.”29 In addressing a statute concerning the disposition
of untried charges,30 the Court of Appeals stated that “good
cause is something that must be substantial, but also a factual
question dealt with on a case-by-case basis.”31
[8] We conclude that the same definition should apply to
this statute. We hold that for purposes of § 83-178(2), “good
23 § 83-178(2).
24 State v. Vela, supra note 8.
25 § 83-178(2).
26 DeVries v. Rix, 203 Neb. 392, 403, 279 N.W.2d 89, 95 (1979) (emphasis
omitted). Accord In re Conservatorship of Estate of Marsh, 5 Neb. App.
899, 566 N.W.2d 783 (1997).
27 See DeVries v. Rix, supra note 26.
28 Neb. Rev. Stat. § 30-2437 (Reissue 2008).
29 DeVries v. Rix, supra note 26, 203 Neb. at 403-04, 279 N.W.2d at 95.
30 See Neb. Rev. Stat. § 29-3805 (Reissue 2008).
31 State v. Caldwell, 10 Neb. App. 803, 808, 639 N.W.2d 663, 667 (2002).

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cause” means a logical or “legally sufficient reason”32 in light
of all of the surrounding facts and circumstances and in view
of the very narrow access intended by the Legislature. Because
our decision is based on the plain and ordinary meaning of the
statute, we need not resort to legislative history. However, for
the sake of completeness, we observe that the first two sen-
tences of § 83-178(2) remain essentially unchanged from their
original enactment in 196933 and that the legislative history of
that enactment does not speak to the meaning or purpose of
the provision.34
The question then becomes whether, in light of all of the
surrounding facts and circumstances and in view of the very
narrow access intended by the Legislature, Pettit established
a logical or legally sufficient reason. We conclude that he
did not.
In essence, Pettit and the Sarpy County Attorney—indi-
viduals involved in reporting on and investigating Joubert’s
crimes—believed that the drawings had historical value and
that the public had a right to know about the drawings. But as
we have already explained, this is not an “open records” provi-
sion. Thus, their views or opinions cannot enlarge the purpose
defined by the statute or detract from the statutory prescription
of confidentiality.
Although Pettit also proffered a scholarly or forensic pur-
pose, it was purely speculative. Pettit explained that Joubert
believed he would be released from prison and that Joubert
“left a roadmap” about killing more children upon release.
Pettit wished to have the drawings examined by a forensic
32 Black’s Law Dictionary 266 (10th ed. 2014).
33 See 1969 Neb. Laws, ch. 817, § 9, p. 3076.
34 See, Introducer’s Statement of Intent, L.B. 1307, Committee on
Government and Military Affairs, 80th Leg., 1st Sess. (Mar. 20, 1969);
Committee on Government and Military Affairs Hearing, L.B. 1307, 80th
Leg., 1st Sess. 8-24 (Mar. 20, 1969); Floor Debates, 1st Sess. 2990-93
(July 17, 1969), 1st Sess. 3231-32 (July 25, 1969), 1st Sess. 3304-11 (July
29, 1969), and 1st Sess. 3888 (Aug. 12, 1969).

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psychiatrist and believed that police could learn from the draw-
ings and resulting analysis. But Pettit presented no evidence
that he possessed any scientific or other qualifications to make
such a judgment. And he offered no evidence from any expert
in psychology or penology supporting his belief regarding the
value of such an examination.
On appeal, DCS focuses on the financial benefits that might
flow to Pettit from sales of future editions of his book. Before
the district court, the testimony of DCS’ director did not
emphasize this circumstance. We do not view Pettit’s interest
or expectation of financial gain as a significant factor in our
analysis, but whatever weight it may have does not support
his request. At oral argument, there was also a suggestion that
the words “public inspection” omitted copying or duplication
of the materials. In light of our conclusion that Pettit failed to
show good cause, we need not discuss the nature and extent of
a trial court’s power in a proper case to impose conditions for
“public inspection.”
CONCLUSION
Upon our de novo review of the undisputed facts, we con-
clude that Pettit failed to demonstrate good cause for inspec-
tion and reproduction of the drawings. We therefore reverse
the district court’s judgment and remand the cause with direc-
tions to dismiss Pettit’s complaint.
reverseD aND reMaNDeD WitH DireCtioNs .
stepHaN, J., not participating.