N'Da v. Golden

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
N’DA v. GOLDEN
Cite as 318 Neb. 680
M’Moupientila “Marc” N’Da and Dignity
Non-Emergency Medical Transportation, Inc.,
appellants and cross-appellees, v. Thomas Golden,
executive director of the Nebraska Public
Service Commission, et al., appellees
and cross-appellants.
___ N.W.3d ___
Filed April 4, 2025. 	No. S-23-945.
1. Declaratory Judgments: Appeal and Error. When a declaratory judg-
ment action presents a question of law, an appellate court has an obliga-
tion to reach its conclusion independently of the conclusion reached by
the trial court with regard to that question.
2. Constitutional Law: Statutes: Appeal and Error. The constitutional-
ity of a statute is a question of law, and the Nebraska Supreme Court is
obligated to reach a conclusion independent of the decision reached by
the trial court.
3. Constitutional Law: Appeal and Error. Constitutional interpretation is
a question of law on which the Nebraska Supreme Court is obligated to
reach a conclusion independent of the decision by the trial court.
4. Declaratory Judgments: Justiciable Issues. The function of declara-
tory relief is to determine a justiciable controversy that is either not yet
ripe by conventional remedy or, for other reasons, is not conveniently
amenable to usual remedies.
5. Declaratory Judgments: Equity. Declaratory and equitable relief are
not appropriate where another equally serviceable remedy has been pro-
vided by law, and such relief is available only in the absence of a full,
adequate, and serviceable remedy.
6. Constitutional Law: Statutes. A constitutional challenge may be made
either as a facial challenge to the statute or as a challenge to the applica-
tion of the statute to a specific person in a specific case.
7. ____: ____. A facial challenge is a challenge to a statute, asserting that
no valid application of the statute exists because it is unconstitutional
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:12 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
N’DA v. GOLDEN
Cite as 318 Neb. 680
on its face. Generally, a facial challenge seeks to void the statute in all
contexts for all parties.
8. Constitutional Law: Statutes: Proof. A plaintiff can succeed in a facial
challenge only by establishing that no set of circumstances exists under
which the act would be valid, i.e., that the law is unconstitutional in all
of its applications.
9. Constitutional Law: Statutes. In contrast to a facial challenge, an
as-applied challenge often concedes the statute is constitutional in some
of its applications, but contends it is unconstitutional as applied to the
particular facts of the case. An as-applied challenge does not seek to
void the statute for all purposes but seeks only to prevent the statute’s
application to the facts before the court.
10. Constitutional Law: Statutes: Presumptions: Proof. A statute is pre-
sumed to be constitutional, and all reasonable doubts are resolved in
favor of its constitutionality. The party challenging the constitutionality
of a statute bears the burden to clearly establish the unconstitutionality
of a statutory provision.
11. Constitutional Law: Statutes. It is not the province of a court to annul
a legislative act unless it clearly contravenes the constitution and no
other resort remains.
12. Constitutional Law: Due Process: Equal Protection. The Nebraska
Constitution’s due process and equal protection clauses afford protec-
tions coextensive to those of the federal Constitution.
13. Constitutional Law: Administrative Law: Due Process. The appli-
cable standard to review a due process challenge to an economic regu-
lation is that when a fundamental right or suspect classification is not
involved, an economic regulation is a valid exercise of police power if it
is rationally related to a legitimate state interest.
14. Special Legislation. A legislative act constitutes special legislation if
(1) it creates an arbitrary and unreasonable method of classification or
(2) it creates a permanently closed class.
Appeal from the District Court for Lancaster County, Kevin
R. McManaman, Judge. Affirmed in part, and in part vacated.
Perry A. Pirsch, of Pirsch Legal Services, P.C., L.L.O.,
and Andrew Ward, William Aronin, Joseph Gay, and Justin
Pearson, of Institute for Justice, pro hac vice, for appellants.
Michael T. Hilgers, Attorney General, Eric J. Hamilton, and
Grant D. Strobl, for appellees.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
N’DA v. GOLDEN
Cite as 318 Neb. 680
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ., and Bishop, Judge.
Miller-Lerman, J.
NATURE OF CASE
Plaintiffs-appellants, 	M’Moupientila 	“Marc” 	N’Da 	and
Dignity Non-Emergency Medical Transportation, Inc. (Dignity
NEMT), appeal the order of the district court for Lancaster
County in this declaratory action that rejected their consti-
tutional challenge to the “public convenience and necessity”
requirement of Neb. Rev. Stat. § 75-311(1)(b) and (3) (Cum.
Supp. 2024). We determine that to the extent their constitu-
tional challenge was a facial challenge, an action for declara-
tory relief was appropriate. Accordingly, we affirm the district
court’s order to the extent it rejected the facial challenge.
However, we determine that to the extent the plaintiffs pre-
sented an as-applied challenge, such challenge would find
an equally serviceable remedy in an appeal from a denial
of an application under § 75-311, and that declaratory relief
was not appropriate for an as-applied challenge in this case.
Accordingly, we vacate the district court’s order to the extent it
ruled on an as-applied challenge to the public convenience and
necessity requirement.
STATEMENT OF FACTS
N’Da is the owner and president of Dignity NEMT. N’Da
owns and operates various other entities that provide home
health care and other services to elderly and disabled people.
The entities provide, among such services, transportation for
general purposes such as grocery shopping. However, the enti-
ties are not certified under state law to provide nonemergency
medical transportation for purposes such as medical appoint-
ments and trips to the pharmacy.
N’Da observed that his clients frequently received inad-
equate service from certified providers of nonemergency medi-
cal transportation. He therefore formed Dignity NEMT in
2017 with the goal of providing more reliable service to his

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
N’DA v. GOLDEN
Cite as 318 Neb. 680
clients. N’Da purchased specially equipped vehicles, obtained
insurance, and contingently hired employees in preparation
to provide the service. N’Da and Dignity NEMT applied to
the Public Service Commission (PSC) to obtain a certificate
as required by state law to provide nonemergency medical
transportation.
When a common carrier seeks a certificate to provide non-
emergency medical transportation services, the carrier must
show under § 75-311(1)(a) that it is “fit, willing, and able prop-
erly to perform the service proposed” and under § 75-311(1)(b)
that “the proposed service . . . is or will be required by the
present or future public convenience and necessity.” If the car-
rier seeks a designation of authority to provide nonemergency
medical transportation services to Medicaid recipients pursu-
ant to a contract with, inter alia, the Department of Health
and Human Services (DHHS), the carrier must show under
§ 75-311(3) that such “authorization is or will be required by
the present or future convenience and necessity to serve the
distinct needs of medicaid clients.” Although § 75-311(3) does
not refer to “public” convenience and necessity, the require-
ments of both subsections (1)(b) and (3) are frequently referred
to by the parties and herein as the “public convenience and
necessity” requirement. This court has long stated that
“[i]n determining public convenience and necessity, the
deciding factors are (1) whether the operation will serve
a useful purpose responsive to a public demand or need,
(2) whether this purpose can or will be served as well by
existing carriers, and (3) whether it can be served by the
applicant in a specified manner without endangering or
impairing the operations of existing carriers contrary to
the public interest.”
Tymar v. Two Men and a Truck, 282 Neb. 692, 695, 805 N.W.2d
648, 653 (2011) (quoting In re Application of Nebraskaland
Leasing & Assocs., 254 Neb. 583, 578 N.W.2d 28 (1998)).
See, also, In re Application of Moritz, 153 Neb. 206, 43
N.W.2d 603 (1950).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
N’DA v. GOLDEN
Cite as 318 Neb. 680
When N’Da and Dignity NEMT filed their application to
provide nonemergency medical transportation, four existing
carriers that provide such service protested the application.
After an administrative hearing, the PSC entered an order
on April 24, 2018, denying the application. The PSC found
under § 75-311(1)(a) that N’Da and Dignity NEMT were “fit,
willing, and able properly to perform the service proposed.”
However, the PSC denied the application because it found
under § 75-311(1)(b) and (3) that N’Da and Dignity NEMT
had not shown that the proposed service was required by the
present or future public convenience and necessity.
In its order, the PSC reviewed the factors set forth above
regarding public convenience and necessity and found that
N’Da and Dignity NEMT (1) did not produce sufficient evi-
dence other than N’Da’s own testimony regarding need, (2)
presented no evidence indicating that existing carriers were
failing to meet the needs of the market, and (3) did not offer
evidence showing that N’Da and Dignity NEMT’s entry into
the market “would be harmless to other carriers.” One com-
missioner dissented and found that N’Da’s testimony suf-
ficiently showed need and that the evidence did not show
that the service proposed by N’Da and Dignity NEMT would
harm existing carriers. With regard to the PSC’s standard that
imposes on N’Da and Dignity NEMT a burden to show no
harm to existing carriers, we are not required to and do not in
this opinion comment on the propriety of this standard.
N’Da and Dignity NEMT did not appeal the PSC’s denial
of the application. Instead, on April 22, 2020, N’Da and
Dignity NEMT filed a complaint for declaratory and injunc-
tive relief in the district court for Lancaster County, and the
order entered in that action gives rise to this appeal. N’Da
and Dignity NEMT named as defendants the PSC, DHHS,
and various officials of each entity, including the executive
director and commissioners of the PSC and the chief execu-
tive director of DHHS, all of whom were sued in their official
capacities. N’Da and Dignity NEMT served the complaint on

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
N’DA v. GOLDEN
Cite as 318 Neb. 680
the defendants and on the Nebraska Attorney General. The
PSC and DHHS were later dismissed as defendants, and cer-
tain named officials were substituted with their successors in
office before this matter was heard in the district court. The
defendants were represented in the district court and in this
appeal by the Attorney General’s office. The defendants are
hereinafter collectively referred to as “the State.”
In 	the 	complaint, 	N’Da 	and 	Dignity 	NEMT 	generally
alleged that the public convenience and necessity require-
ment found in § 75-311(1)(b) and (3) was unconstitutional.
They stated that they “agree[d] that the PSC followed the
relevant Nebraska statutes and regulations” and that they were
“merely challenging the unconstitutional trade barrier created
by the ‘public convenience and necessity’ requirement found
in” § 75-311(1)(b) and (3). They alleged that the district court
had jurisdiction over their claims and could grant the declara-
tory and injunctive relief requested.
N’Da and Dignity NEMT alleged that the public conve-
nience and necessity requirement of § 75-311(1)(b) and (3)
violated three provisions of the Nebraska Constitution: the
due process clause of Neb. Const. art. I, § 3; the special leg-
islation clause of Neb. Const. art. III, § 18; and the special
privileges and immunities clause of Neb. Const. art. I, § 16.
N’Da and Dignity NEMT made no challenge based on the
federal Constitution. They alleged that the public convenience
and necessity requirement was “facially unconstitutional” and
“unconstitutional as applied to” them.
Regarding the impact of the existing nonemergency medical
transportation companies, N’Da and Dignity NEMT alleged in
the complaint that the PSC’s application of the public con-
venience and necessity requirement “effectively affords the
existing non-emergency medical transportation companies the
ability to determine whether new companies are allowed to
compete with them.” They alleged that under relevant stat-
utes and regulations, existing nonemergency medical trans-
portation companies are given notice of applications and may

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
N’DA v. GOLDEN
Cite as 318 Neb. 680
oppose any application, and that existing companies typically
object to applications from potential new competitors. They
further alleged that when there were no objections, the PSC
typically granted an application without a hearing, but that
when existing companies objected, the PSC typically did not
grant the application. N’Da and Dignity NEMT alleged that
their application was denied because of the public conve-
nience and necessity requirement and the objection of existing
nonemergency medical transportation companies.
N’Da and Dignity NEMT alleged that the public convenience
and necessity requirement protected existing nonemergency
medical transportation companies from competition and that it
harmed the public in various respects, including by diminish-
ing the quality of service provided to patients, the elderly, and
the disabled. They further alleged that the public convenience
and necessity requirement did not advance any legitimate state
interest and that it did not promote public health, safety, or
welfare, which were protected by “numerous [other] health and
safety provisions.”
Regarding the due process claim, N’Da and Dignity NEMT
alleged that application of the public convenience and neces-
sity requirement to protect existing nonemergency medical
transportation companies was not a constitutionally legitimate
basis for prohibiting applicants from operating a nonemer-
gency medical transportation company, which they alleged
was their legal right. Regarding the special legislation claim,
N’Da and Dignity NEMT alleged that protecting existing
companies and allowing them to veto new entrants into the
market through application of the public convenience and
necessity requirement created an arbitrary and unreasonable
classification between companies, bestowed economic favors
on a preferred group or class, and created a permanently
closed class. Regarding the special privileges and immuni-
ties claim, N’Da and Dignity NEMT alleged that the pub-
lic convenience and necessity requirement granted existing

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Nebraska Supreme Court Advance Sheets
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N’DA v. GOLDEN
Cite as 318 Neb. 680
companies governmental protection from competition and the
privilege to determine whether others would be allowed to
compete with them.
As relief, N’Da and Dignity NEMT sought (1) a declara-
tory judgment that § 75-311(1)(b) and (3) violate Neb. Const.
art. III, § 18, and its prohibition on special legislation; (2) a
declaratory judgment that § 75-311(1)(b) and (3) violate Neb.
Const. art. I, § 3, and its guarantee of due process of law; (3)
a declaratory judgment that § 75-311(1)(b) and (3) violate
Neb. Const. art. I, § 16, and its prohibition on granting special
privileges or immunities; (4) an order permanently enjoining
the State from enforcing the public convenience and necessity
requirement of § 75-311(1)(b) and (3) “in any manner”; (5) an
order permanently enjoining the State from enforcing the pub-
lic convenience and necessity requirement of § 75-311(1)(b)
and (3) as applied to N’Da and Dignity NEMT; and (6) other
appropriate relief, including but not limited to nominal dam-
ages, reasonable costs, and attorney fees. In response to the
State’s motion to dismiss, in addition to dismissing the PSC
and DHHS as defendants, the district court dismissed N’Da
and Dignity NEMT’s claim for nominal damages. The matter
proceeded to trial on the remaining claims against the remain-
ing defendants.
The district court conducted a bench trial in January 2023
at which it took evidence and heard testimony and arguments.
N’Da testified regarding, inter alia, his experience in apply-
ing for certification under § 75-311 and other observations
regarding how the PSC generally applies the public conve-
nience and necessity requirement. Other witnesses presented
by N’Da and Dignity NEMT included the general counsel for
the PSC, an administrator of DHHS Medicaid programs, a
DHHS employee who had worked with nonemergency medi-
cal transportation programs, and a former commissioner of the
PSC. N’Da and Dignity NEMT also offered numerous exhibits
into evidence. The State did not present its own witnesses, but
it cross-examined N’Da and Dignity NEMT’s witnesses.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
N’DA v. GOLDEN
Cite as 318 Neb. 680
Following the trial, the district court filed an order on
October 24, 2023, in which it rejected N’Da and Dignity
NEMT’s constitutional challenges and dismissed their com-
plaint. In its analysis, the district court first addressed an argu-
ment raised by the State that a declaratory judgment action
was not appropriate because N’Da and Dignity NEMT had an
equally serviceable remedy. The State relied on the proposition
that declaratory and equitable relief are not appropriate where
another equally serviceable remedy has been provided by law,
and such relief is available only in the absence of a full, ade-
quate, and serviceable remedy. See McKay v. Bartels, 316 Neb.
235, 3 N.W.3d 920 (2024). The State argued that N’Da and
Dignity NEMT had an equally serviceable remedy in that they
could again apply for certification to provide nonemergency
public transportation and could challenge the constitutional-
ity of the public convenience and necessity requirement in an
administrative appeal if the PSC again denied their applica-
tion. The district court cited In re Application of Nebraskaland
Leasing & Assocs., 254 Neb. 583, 590, 578 N.W.2d 28, 33,
34 (1998), a case involving an application to the PSC for a
certificate of public convenience and necessity pursuant to
§ 75-311, in which this court determined that the applicant
could not in that action “challenge the constitutionality of
§§ 75-301 through 75-322,” reasoning that such challenge
was “precluded by the rule that a litigant who invokes the
provisions of a statute may not challenge its validity nor seek
the benefit of such statute and in the same action and at the
same time question its constitutionality.” The court determined
that because N’Da and Dignity NEMT “would not be able to
challenge the constitutionality [of the public convenience and
necessity requirement] on appeal from reapplication, there is
no equally serviceable remedy, and this declaratory judgment
is therefore proper.”
Regarding N’Da and Dignity NEMT’s due process claim
under Neb. Const. art. I, § 3, the district court first addressed
the level of scrutiny and the argument of N’Da and Dignity

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Nebraska Supreme Court Advance Sheets
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N’DA v. GOLDEN
Cite as 318 Neb. 680
NEMT that the public convenience and necessity require-
ment should be “scrutinized by the courts under a heightened
legal standard, the real and substantial test, applicable when
economic interests are being regulated.” In contrast, the court
noted the State had argued that the “‘rational basis’” test rather
than the “‘real and substantial’” test was the proper level of
scrutiny of the substantive due process claim.
The court reviewed various precedents of this court involv-
ing due process claims. In particular, the court cited Malone
v. City of Omaha, 294 Neb. 516, 533, 883 N.W.2d 320, 333
(2016), in which the plaintiff challenged a municipal ordinance
on various bases, including that it violated “his constitutional
right to conduct a lawful business.” In Malone, we stated that
the “test of validity [of a regulatory statute affecting such
right] is the existence of a real and substantial relationship
between the exercise of the police power and the public health,
safety, and welfare.” 294 Neb. at 533, 883 N.W.2d at 333.
We reasoned that the plaintiff had “a constitutional right to
conduct a lawful business,” but that “so long as the regulation
. . . bears a reasonable relationship to the public health, safety,
and welfare, the regulation of that right is permissible.” Id.
at 533, 883 N.W.2d at 334. We concluded in Malone that the
ordinance at issue bore a reasonable relationship to the public’s
health, safety, and welfare.
The district court in this case recognized “an apparent con-
flation of terminology” in Malone, but it ultimately agreed
with the State that “the use of the phrase ‘real and substan-
tial’ [in Malone] did not signal the use of heightened scrutiny
under substantive due process for economic interests” and that
instead, this court in Malone ultimately applied a rational basis
test. The court further cited precedent of this court, including
Keller v. City of Fremont, 280 Neb. 788, 791, 790 N.W.2d 711,
713 (2010), for the proposition that this court has “interpreted
the Nebraska Constitution’s due process and equal protection
clauses to afford protections coextensive to those of the federal
Constitution.”

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Nebraska Supreme Court Advance Sheets
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N’DA v. GOLDEN
Cite as 318 Neb. 680
The district court rejected N’Da and Dignity NEMT’s argu-
ment that “a heightened due process standard . . . called the
‘real and substantial’ test” applied in cases such as the pres-
ent involving the economic right to conduct a business, and it
stated that N’Da and Dignity NEMT’s argument was “a call to
return to a standard of scrutiny that retains no current support
in Nebraska law.” The court stated instead that the standard
was that set forth in cases such as Connelly v. City of Omaha,
284 Neb. 131, 148, 816 N.W.2d 742, 758 (2012), in which we
stated, “‘When a fundamental right or suspect classification
is not involved in the legislation, the legislative act is a valid
exercise of the police power if the act is rationally related to a
legitimate state interest.’”
The district court then analyzed N’Da and Dignity NEMT’s
due process claim under what it described as “rational-basis
scrutiny.” The court stated that existing providers of nonemer-
gency medical transportation “have no inherent right to be
protected from new competition,” but that such determination
“does not end the analysis under the rational basis test.” The
court found that the public convenience and necessity require-
ment “appears at least rationally related to health and welfare
in that it seeks to prevent ‘destructive competition’ to the mar-
ket delivering medical transportation” to Nebraska patients,
including Medicaid patients. The court cited the PSC’s coun-
sel’s testimony referring to the “‘destructive competition’”
rationale. The court stated that the public convenience and
necessity requirement “could conceivably tend to avoid or
reduce destructive competition of current . . . providers after
they have sunk resources into serving medical (including
Medicaid) patients” and that the requirement “can be used to
promote access to service by preventing destructive competi-
tion to existing services.”
Based on its determination that due process under the
Nebraska Constitution is coextensive with that under the
federal Constitution, the district court reviewed various fed-
eral cases analyzing federal due process challenges to what

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N’DA v. GOLDEN
Cite as 318 Neb. 680
it found to be regulations similar in effect to the public
convenience and necessity requirement. The court generally
distinguished between regulation that was “purely protection-
ist” and that which serves some public good. Applying the
precedent it reviewed, the court concluded that N’Da and
Dignity NEMT had not met their burden to clearly establish
the unconstitutionality of the public convenience and neces-
sity requirement. The court determined instead that the evi-
dence showed that the requirement “promotes sufficient, safe,
and reliable transportation,” and it agreed with the State’s
argument that the requirement had a legitimate state interest
“‘in protecting its passengers by ensuring the . . . marketplace
does not become oversaturated to the point that no providers
are able to service [a] vulnerable population in an efficient
and cost-effective manner.’” The court concluded that N’Da
and Dignity NEMT had not shown that the public conve-
nience and necessity requirement “is unconstitutional under
rational-basis scrutiny.”
Regarding N’Da and Dignity NEMT’s special legislation
claim under Neb. Const. art. III, § 18, the district court stated
that “the threshold question in special legislation analysis
asks whether the challenged legislative act confers any spe-
cial rights or benefits on a select class.” The court rejected
the challenge, finding that the public convenience and neces-
sity requirement of § 75-311(1)(b) and (3) did not create an
arbitrary or unreasonable classification and that it did not
create a closed class. Regarding an arbitrary or unreason-
able classification, the court referred to its finding in its due
process analysis that the State had a legitimate interest in
regulating nonemergency transportation services through the
public convenience and necessity requirement “to avoid ruin-
ous or destructive competition that it believes is harmful to
the public interest, including those often-vulnerable Medicaid
recipients” who use such services. The court determined that
the public convenience and necessity requirement served a

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N’DA v. GOLDEN
Cite as 318 Neb. 680
legitimate state interest and that “the State’s methodology is
neither arbitrary nor unreasonable.” The court further found
that the public convenience and necessity requirement did not
create a closed class and that instead, “it sets standards all
individuals and entities must meet.” The court further found
that the requirement “creates opportunities for the numbers
in the class to increase,” and the court noted evidence that
since 2015, the PSC had granted applications for new carriers
and had “expanded its [nonemergency medical transportation]
carriers when they are necessary to serve the public.” The
court rejected N’Da and Dignity NEMT’s special legislation
challenge.
Regarding N’Da and Dignity NEMT’s special privileges and
immunities claim under Neb. Const. art. I, § 16, the district
court observed that challenges under the clause were “sel-
dom brought.” The court stated that the evidence in this case
showed that the public convenience and necessity requirement
was “intended to promote access to sufficient, affordable, reli-
able medical transportation, . . . thereby promoting the health
and welfare of the citizens of Nebraska using Medicaid.” The
court further stated that the purpose of the requirement was
“promotion of the public interest in the market not becoming
oversaturated to the point where no transportation providers
can continue to provide services, rather than granting a ben-
efit to private transportation providers.” The court also noted
similarity between the special privileges and immunities clause
of Neb. Const. art. I, § 16, and the Privileges and Immunities
Clause of the U.S. Constitution. Based on these considerations,
the court rejected N’Da and Dignity NEMT’s special privileges
and immunities claim.
Having rejected each of N’Da and Dignity NEMT’s consti-
tutional challenges to § 75-311(1)(b) and (3), the district court
dismissed their complaint with prejudice.
N’Da and Dignity NEMT appeal the district court’s order,
and the State cross-appeals.

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N’DA v. GOLDEN
Cite as 318 Neb. 680
ASSIGNMENTS OF ERROR
In their appeal, N’Da and Dignity NEMT claim that the
district court erred when it (1) applied a “rational-basis test”
rather than a “real-and-substantial test” to their due process
challenge, (2) rejected their due process challenge, (3) rejected
their special legislation challenge, and (4) rejected their special
privileges and immunities challenge.
In its cross-appeal, the State claims that the district court
erred when it rejected the State’s argument that this action for
declaratory and injunctive relief was not appropriate because
N’Da and Dignity NEMT had an equally serviceable remedy
by applying for a certificate and appealing an order of the
PSC denying their application for a certificate of public conve-
nience and necessity.
STANDARDS OF REVIEW
[1] When a declaratory judgment action presents a question
of law, an appellate court has an obligation to reach its con-
clusion independently of the conclusion reached by the trial
court with regard to that question. Adams v. State Board of
Parole, 293 Neb. 612, 879 N.W.2d 18 (2016).
[2,3] The constitutionality of a statute is a question of law,
and this court is obligated to reach a conclusion independent
of the decision reached by the trial court. State ex rel. Peterson
v. Shively, 310 Neb. 1, 963 N.W.2d 508 (2021). Constitutional
interpretation is a question of law on which this court is obli-
gated to reach a conclusion independent of the decision by the
trial court. Id.
ANALYSIS
Declaratory Judgment: Was Declaratory and
Injunctive Relief Appropriate or Was an
Equally Serviceable Remedy Available?
We first address the State’s cross-appeal and its claim that
this action for declaratory and injunctive relief was not appro-
priate because N’Da and Dignity NEMT had an equally ser-
viceable remedy in an appeal from the denial of a certificate

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N’DA v. GOLDEN
Cite as 318 Neb. 680
under § 75-311. As set forth below, we determine that to
the extent N’Da and Dignity NEMT’s constitutional chal-
lenge to the public convenience and necessity requirement of
§ 75-311(1)(b) and (3) is a facial challenge to the statutes, a
declaratory judgment action is appropriate, but to the extent
their challenge is an as-applied challenge, an appeal from a
denial of their application in the PSC would be an equally ser-
viceable remedy and the as-applied challenge was not appro-
priate in this declaratory judgment action.
[4,5] The function of declaratory relief is to determine a jus-
ticiable controversy that is either not yet ripe by conventional
remedy or, for other reasons, is not conveniently amenable
to usual remedies. State ex rel. Wagner v. Evnen, 307 Neb.
142, 948 N.W.2d 244 (2020). We have held that a declaratory
judgment will generally not lie where another equally service-
able remedy is available. Id. We have stated that declaratory
and equitable relief are not appropriate where another equally
serviceable remedy has been provided by law, and such relief
is available only in the absence of a full, adequate, and ser-
viceable remedy. McKay v. Bartels, 316 Neb. 235, 3 N.W.3d
920 (2024). The appropriateness of a declaratory judgment is
ascertained by the precise relief sought. Id.
After 	the 	PSC 	denied 	their 	application 	pursuant 	to
§ 75-311(1)(b) and (3), N’Da and Dignity NEMT did not
appeal the denial by the PSC, and they instead filed the
present declaratory judgment action to declare unconstitu-
tional the public convenience and necessity requirement of
§ 75-311(1)(b) and (3). As noted above, the State claims on
cross-appeal that a declaratory judgment action was not appro-
priate in this case because an equally serviceable remedy was
available to N’Da and Dignity NEMT. The State contends
that they could have appealed from the original denial or that
they could apply again to the PSC and then appeal if the new
application is denied. The State argues that N’Da and Dignity
NEMT could challenge the constitutionality of § 75-311(1)(b)
and (3) in an administrative appeal from a denial by the PSC.

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The district court addressed and rejected the State’s argu-
ment. The court cited In re Application of Nebraskaland
Leasing & Assocs., 254 Neb. 583, 590, 578 N.W.2d 28, 33
(1998), a case involving an application to the PSC for a
certificate of public convenience and necessity pursuant to
§ 75-311, in which this court determined that the applicant
could not in that action “challenge the constitutionality of
§§ 75-301 through 75-322,” reasoning that such challenge
was “precluded by the rule that a litigant who invokes the
provisions of a statute may not challenge its validity nor seek
the benefit of such statute and in the same action and at the
same time question its constitutionality.” The court determined
that because N’Da and Dignity NEMT “would not be able to
challenge the constitutionality [of the public convenience and
necessity requirement] on appeal from reapplication, there is
no equally serviceable remedy, and this declaratory judgment
is therefore proper.”
The State argues in its cross-appeal that the district court
misread In re Application of Nebraskaland Leasing & Assocs.
The State focuses on a portion of the reasoning in that case
to the effect that there was an “inconsistency in the positions
taken by” the applicant before the PSC and those taken on
appeal to a court. Id. at 590, 578 N.W.2d at 33. The State
contends that N’Da and Dignity NEMT could apply for a
certificate under § 75-311 but also assert that the public con-
venience and necessity requirement is unconstitutional and
therefore effectively not seek a public convenience and neces-
sity determination. Under this scenario, the State argues that
if N’Da and Dignity NEMT appealed to a court and presented
a constitutional challenge to the appellate court, they would
be proceeding without taking an inconsistent position. In this
regard, we are aware of In re Application A-16642, 236 Neb.
671, 463 N.W.2d 591 (1990), wherein a partial permit was
granted and the appealing complaining objectors assigned as
error that Neb. Rev. Stat. § 46-2,115(1) (Reissue 1988) was
unconstitutional.

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We read In re Application of Nebraskaland Leasing &
Assocs. differently. We read the relevant inconsistency as being
an inconsistency in the relief sought. That is, it is inconsistent
for one to seek to gain the benefit of a statute and at the same
time seek to have the statute declared unconstitutional. That
is, one cannot have a statute declared unconstitutional and still
expect to gain the benefit of the statute. By example, in this
case, N’Da and Dignity NEMT could not have § 75-311(1)(b)
and (3) declared unconstitutional and also gain the benefit
of certification and authorization under § 75-311(1)(b) and
(3). Under our precedent, if they were successful in having
§ 75-311(1)(b) and (3) declared unconstitutional, they could
not also be granted certification and authorization under those
statutory provisions.
Based on this understanding, we take this opportunity to
clarify the scope of the proposition that a litigant who invokes
the provisions of a statute may not challenge its validity or
seek the benefit of such statute and in the same action and at
the same time question its constitutionality. We do not appear
to have previously determined whether the proposition is
equally applicable whether the constitutional challenge is a
facial challenge to the statute or an as-applied challenge to
the way the statute was applied to a specific person or group
of persons. As discussed below, we conclude that the proposi-
tion is applicable to a facial challenge but not to an as-applied
challenge, because the two types of constitutional challenges
have different goals and require different considerations.
[6-8] A constitutional challenge may be made either as a
facial challenge to the statute or as a challenge to the applica-
tion of the statute to a specific person in a specific case. State
v. Zitterkopf, 317 Neb. 312, 9 N.W.3d 896 (2024). We have
described a facial challenge as a challenge to a statute, assert-
ing that no valid application of the statute exists because it is
unconstitutional on its face. Id. Generally, a facial challenge
seeks to void the statute in all contexts for all parties. Id. A
plaintiff can succeed in a facial challenge only by establishing

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that no set of circumstances exists under which the act would
be valid, i.e., that the law is unconstitutional in all of its
applications. See State v. Jones, 317 Neb. 559, 10 N.W.3d
747 (2024). The U.S. Supreme Court has stated that a facial
challenge to a legislative act is the most difficult challenge to
mount successfully, since the challenger must establish that
no set of circumstances exists under which that act would be
valid. United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095,
95 L. Ed. 2d 697 (1987).
[9] A facial challenge stands in contrast to a challenge to an
ordinance or statute “as applied” to the individual. See Hamit
v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006). In contrast
to a facial challenge, an as-applied challenge often concedes
the statute is constitutional in some of its applications, but
contends it is unconstitutional as applied to the particular facts
of the case. State v. Zitterkopf, supra. An as-applied challenge
does not seek to void the statute for all purposes but seeks
only to prevent the statute’s application to the facts before the
court. Id.
With this understanding of the differing goals of facial and
as-applied challenges, the proposition that one cannot seek the
benefit of a statute and in the same action and at the same time
question the statute’s constitutionality clearly applies when one
makes a facial challenge to the challenge, because in a facial
challenge, one seeks to have the statute invalidated in all its
circumstances and therefore declared unconstitutional. One
cannot successfully have a statute declared unconstitutional
but still gain the benefit that the statute provides. By contrast,
in an as-applied challenge, one does not seek to have the
statute declared unconstitutional and invalid for all purposes.
Instead, one argues that it is unconstitutional to apply an oth-
erwise constitutional statute in a certain way under a certain
set of circumstances. Thus, one could argue that it would be
unconstitutional to apply the statute in a certain way, specifi-
cally in a way that would deny that person the benefit of the
statute. But it would not necessarily be inconsistent for one

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to seek the benefit of a statute and simultaneously argue that
it would be unconstitutional to apply the statute in a way that
denied one the benefit of the statute.
We therefore hold that the proposition stated in In re
Application of Nebraskaland Leasing & Assocs., 254 Neb.
583, 578 N.W.2d 28 (1998), and other cases to the effect that a
litigant who invokes the provisions of a statute may not chal-
lenge its validity or seek the benefit of such statute and in the
same action and at the same time question its constitutionality
is relevant when the litigant makes a facial challenge to the
statute. However, the proposition is not relevant when a litigant
raises an as-applied challenge to the way a statute is applied to
a specific person or group of persons but does not seek to have
the statute declared unconstitutional on its face.
Based on this understanding, we read In re Application of
Nebraskaland Leasing & Assocs. to mean that one cannot
seek certification or authorization under § 75-311 and related
statutes and in that proceeding also make a facial challenge
seeking a declaration that the statutory scheme in whole or in
part is unconstitutional and invalid. However, one can seek
certification or authorization under the statutory scheme while
arguing that it would be unconstitutional to apply the otherwise
constitutional statute in a certain way.
With this understanding of In re Application of Nebraskaland
Leasing & Assocs. and of the distinction between facial and
as-applied challenges, we determine as relevant to the instant
case that N’Da and Dignity NEMT could raise an as-applied
challenge in a proceeding before the PSC seeking certifica-
tion or authorization under § 75-311, but that they could not
raise a facial challenge to the public convenience and neces-
sity requirement under § 75-311(1)(b) and (3) in that same
proceeding. That is, N’Da and Dignity NEMT could preserve
their as-applied challenge before the PSC and, if unsuccessful
in obtaining certification, pursue their as-applied challenge in
the review before a court with authority to rule on such chal-
lenge. This is not to say that the PSC would have authority to

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decide the constitutional challenge; rather, the constitutional
challenge can be decided only by a court authorized to do
so. Thus, N’Da and Dignity NEMT would have an equally
serviceable remedy to raise an as-applied challenge in a pro-
ceeding seeking certification or authorization under § 75-311,
but such proceeding would not provide an equally serviceable
remedy to raise a facial challenge to the public convenience
and necessity requirement under § 75-311(1)(b) and (3).
Consequently, declaratory relief would not be appropriate for
an as-applied challenge, which would have an equally ser-
viceable remedy in a proceeding seeking a certificate before
the PSC, but declaratory relief would be appropriate for a
facial challenge, which would not have an equally service-
able remedy in a proceeding before the PSC. See McKay v.
Bartels, 316 Neb. 235, 3 N.W.3d 920 (2024).
In their complaint for declaratory judgment, N’Da and
Dignity NEMT stated that they were making both a facial
challenge and an as-applied challenge to the public conve-
nience and necessity requirement under § 75-311(1)(b) and
(3). The relief they requested included declaratory judgments
that the public convenience and necessity requirement vio-
lated certain constitutional provisions. They also sought orders
permanently enjoining the State from enforcing the require-
ment “in any manner,” which relief would indicate a facial
challenge, and from enforcing the requirement “as applied
to” N’Da and Dignity NEMT, which relief would indicate an
as-applied challenge.
Regardless of how the parties label a constitutional chal-
lenge, a court will classify the challenge based upon the nature
of the alleged constitutional defect. State v. Stone, 298 Neb. 53,
902 N.W.2d 197 (2017). In its order, the district court did not
characterize the constitutional challenge as facial, as applied,
or both, and in their briefs on appeal, the parties do not make
such a distinction.
As we read N’Da and Dignity NEMT’s arguments, some
arguments appear directed to an as-applied challenge to the

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way the PSC has applied the statutory public convenience and
necessity requirement to them and to other new applicants.
N’Da and Dignity NEMT largely argue that the public conve-
nience and necessity requirement is unconstitutional because it
excessively protects existing carriers and denies new carriers
the ability to engage in the business of providing nonemer-
gency medical transportation. But that argument is largely
an argument regarding the way the public convenience and
necessity requirement has been applied to them and to other
carriers who seek a new certification and authority. In a facial
challenge, however, our focus is on the statutory language
requiring a showing of “public convenience and necessity” in
§ 75-311(1)(b) or “present or future convenience and necessity”
in § 75-311(3) and on whether there is at least some application
of that language that does not violate the Constitution.
To the extent N’Da and Dignity NEMT made a facial chal-
lenge, it was appropriate in this declaratory judgment action.
However, to the extent they made an as-applied challenge, it
was not appropriate in this declaratory judgment action and
instead would be more appropriately raised in an application
for a certificate to the PSC and an appeal from any denial of
that application. We will not consider the district court’s ruling
to the extent it ruled on an as-applied challenge. In this appeal,
we will review the district court’s order as it pertains to con-
stitutionality only to the extent it ruled on a facial challenge to
the statutory requirement.
Related to this issue, we note that the State argues that
the district court lacked jurisdiction to consider N’Da and
Dignity NEMT’s petition for declaratory relief, that N’Da
and Dignity NEMT lacked standing to bring a declaratory
judgment action, and that N’Da and Dignity NEMT’s claims
are not ripe. These arguments generally rely on the State’s
contention on cross-appeal that declaratory relief is not appro-
priate and that instead, N’Da and Dignity NEMT should have
raised their constitutional challenges in a proceeding to apply
for certification and authorization under § 75-311(1)(b) and

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(3). To the extent the constitutional challenges are facial chal-
lenges, we reject these arguments on the same basis upon
which we rejected the State’s argument on cross-appeal and
determined that declaratory judgment is appropriate for a
facial challenge. We need not consider these arguments as
relevant to an as-applied challenge, because we determined
that an as-applied challenge is not appropriate or suitable for
our review in this declaratory judgment action.
Standards Regarding Facial Challenges.
We proceed to consider N’Da and Dignity NEMT’s specific
constitutional challenges. N’Da and Dignity NEMT challenged
the constitutionality of the public convenience and necessity
requirement of § 75-311(1)(b) and (3) based on three separate
provisions of the Nebraska Constitution. All the challenges
are based solely on the Nebraska Constitution and not on the
federal Constitution. As discussed above, we consider the con-
stitutional challenges only as facial challenges, not as-applied
challenges. The following standards apply to all the facial con-
stitutional challenges in this case.
[10,11] A statute is presumed to be constitutional, and all
reasonable doubts are resolved in favor of its constitutionality.
State ex rel. Peterson v. Shively, 310 Neb. 1, 963 N.W.2d 508
(2021). The party challenging the constitutionality of a statute
bears the burden to clearly establish the unconstitutionality of
a statutory provision. Id. It is not the province of a court to
annul a legislative act unless it clearly contravenes the consti-
tution and no other resort remains. Id. A plaintiff can succeed
in a facial challenge only by establishing that no set of circum-
stances exists under which the act would be valid, i.e., that the
law is unconstitutional in all of its applications. See State v.
Jones, 317 Neb. 559, 10 N.W.3d 747 (2024).
Due Process Challenge: Generally.
N’Da and Dignity NEMT’s first constitutional challenge
to 	the 	public 	convenience 	and 	necessity 	requirement 	of
§ 75-311(1)(b) and (3) is based on the due process clause of

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Neb. Const. art. I, § 3, which provides, “No person shall be
deprived of life, liberty, or property, without due process of
law, nor be denied equal protection of the laws.” N’Da and
Dignity NEMT claim that the district court erred when it (1)
applied the wrong standard to review their due process chal-
lenge and (2) rejected their challenge based on that standard.
Due Process Challenge:
Applicable Standard to Review.
As part of their first assignment of error, N’Da and Dignity
NEMT claim the district court erred when it reviewed their
due process claim under a rational basis test rather than a
“real and substantial” test. They generally argue that the court
ignored “Nebraska’s long history of protecting the common-
law right to earn a living by applying the real-and-substantial
test” when reviewing economic regulations. Brief for appel-
lants at 23. We determine that our analysis of substantive due
process claims, including challenges to statutes imposing eco-
nomic regulations, under the Nebraska Constitution is coexten-
sive with analysis under the federal Due Process Clause. We
further determine that the appropriate standard in this case is
whether the statute at issue is rationally related to a legitimate
state interest.
N’Da and Dignity NEMT rely on a line of cases dating to
the early 1900s in which this court applied a “real and sub-
stantial” test when reviewing regulation of economic interests.
The district court noted a history of the U.S. Supreme Court’s
applying a heightened standard to economic regulations in the
context of federal due process analysis from approximately
1905 until the 1930s but, after that time and until the pres-
ent, applying a rational basis review. The Nebraska cases
relied on by N’Da and Dignity NEMT indicate that this court
applied the heightened standard until approximately the 1970s
or 1980s. However, the district court correctly determined that
the more recent trend has been for this court, following the
lead of the federal courts, to apply a rational basis standard in
due process cases.

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[12] In Keller v. City of Fremont, 280 Neb. 788, 791, 790
N.W.2d 711, 713 (2010), we stated that “[w]e have interpreted
the Nebraska Constitution’s due process and equal protection
clauses to afford protections coextensive to those of the federal
Constitution.” For that proposition in Keller, we relied on due
process cases including Citizens for Eq. Ed. v. Lyons-Decatur
Sch. Dist., 274 Neb. 278, 739 N.W.2d 742 (2007), and Hamit
v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006). In Citizens
for Eq. Ed., we stated that the language of the Nebraska due
process clause was “similar to the Due Process Clause of
the federal Constitution, which provides both procedural and
substantive protections.” 274 Neb. at 293, 739 N.W.2d at
756. We further stated that “the Due Process Clauses of both
the federal and the state Constitutions forbid the government
from infringing upon a fundamental liberty interest, no mat-
ter what process is provided, unless the infringement is nar-
rowly tailored to serve a compelling state interest,” id., but
that “when a fundamental right or suspect classification is not
involved . . . a government act is a valid exercise of police
power if it is rationally related to a legitimate governmental
purpose,” id. at 293-94, 739 N.W.2d at 756-57. In Hamit,
we “extend[ed] the foregoing principle of congruence to the
present context involving a parent’s substantive due process
rights, and accordingly, we do not distinguish between the two
constitutions in our analysis.” 271 Neb. at 672, 715 N.W.2d
at 524. See, also, Scofield v. State, 276 Neb. 215, 753 N.W.2d
345 (2008) (analyzing substantive due process claim, stating
that due process requirements of Nebraska’s Constitution are
similar to those of federal Constitution, and therefore applying
same analysis to state and federal constitutional substantive
due process claims).
After Keller, in Connelly v. City of Omaha, 284 Neb. 131,
148, 816 N.W.2d 742, 758 (2012), we again noted the simi-
larity of the Nebraska and federal Due Process Clauses and
stated that in a substantive due process challenge, “‘[w]hen
a fundamental right or suspect classification is not involved

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in the legislation, the legislative act is a valid exercise of the
police power if the act is rationally related to a legitimate
state interest.’”
N’Da and Dignity NEMT cite Malone v. City of Omaha,
294 Neb. 516, 883 N.W.2d 320 (2016), which postdates these
cases and which, they contend, indicates that we still apply a
heightened standard in substantive due process claims involv-
ing economic regulation. We do not agree with this conten-
tion. We note that in Malone, we did not explicitly identify
the constitutional challenge as a due process claim under
either the federal or the Nebraska Constitution. Instead, we
described the constitutional challenge at issue and the stan-
dards applicable thereto as follows:
The liberty to contract, the right to acquire and sell
property in a lawful manner, and the right to conduct law-
ful business are constitutionally protected rights. A regu-
latory statute adopted by virtue of the police power which
has no reasonable relation to the public health, safety, and
welfare is invalid. The test of validity, then, is the exis-
tence of a real and substantial relationship between the
exercise of the police power and the public health, safety,
and welfare. A statute under the guise of a police regula-
tion, which does not tend to preserve the public health,
safety, and welfare, is an unconstitutional invasion of the
personal and property rights of the individual.
Malone, 294 Neb. at 533, 883 N.W.2d at 333-34. N’Da and
Dignity NEMT emphasize the “real and substantial relation-
ship” language.
The district court recognized an “apparent conflation of ter-
minology” in this paragraph of Malone, but it determined that
Malone did not signal the use of a heightened standard for eco-
nomic regulation, because this court ultimately applied a ratio-
nal basis test. We agree that in Malone, we ultimately applied
a rational basis test when we concluded that the ordinance at
issue “bears a reasonable relationship to the public’s health,
safety, and welfare.” 294 Neb. at 534, 883 N.W.2d at 334.

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[13] We further determine that our general holding that
the Nebraska Constitution’s due process and equal protection
clauses afford protections coextensive to those of the federal
Constitution extends specifically to a substantive due process
challenge to an economic regulation. Therefore, the applicable
standard to review a due process challenge to an economic
regulation, such as that at issue in this case, is that when a
fundamental right or suspect classification is not involved, an
economic regulation is a valid exercise of police power if it is
rationally related to a legitimate state interest. When applying
this general standard to economic regulations, advancing the
public’s health, safety, and welfare is a legitimate state interest.
We reject N’Da and Dignity NEMT’s first assignment of error
as it pertains to the proper standard of review.
Due Process Challenge: Rational Basis
Review of Facial Challenge.
N’Da and Dignity NEMT’s second assignment of error is
that the district court erred when it determined that the pub-
lic convenience and necessity requirement of § 75-311(1)(b)
and (3) does not violate the due process clause. We apply a
rational basis test as set forth above, and we keep in mind that
we are reviewing only the facial challenge. We conclude that
the public convenience and necessity requirement is rationally
related to a legitimate state interest in providing reliable and
stable transportation services to the public and that therefore,
the district court did not err when it rejected N’Da and Dignity
NEMT’s due process challenge.
We have recognized that one of the liberties protected by
the federal Constitution’s Due Process Clause is the indi-
vidual’s right to engage in “‘“any of the common occupations
of life.”’” Potter v. Board of Regents, 287 Neb. 732, 741, 844
N.W.2d 741, 751 (2014) (quoting Board of Regents v. Roth,
408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)). We
have also recognized a “constitutionally protected” right to
“conduct lawful business.” Malone v. City of Omaha, 294 Neb.
516, 533, 883 N.W.2d 320, 333 (2016). We determine that a

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substantive due process right to engage in an occupation or to
conduct a business is at issue in this case because the public
convenience and necessity requirement and § 75-311 generally
regulate whether carriers may provide nonemergency medical
transportation services and, in § 75-311(3), whether carriers
are authorized to provide such services to Medicaid recipients
under the specified programs. The protected right is not a fun-
damental right, and therefore, the regulation at issue is subject
to rational basis review.
The district court applied rational basis review in this case,
and it generally found that the public convenience and neces-
sity requirement was rationally related to a legitimate state
interest in preventing destructive competition among provid-
ers of nonemergency transportation services. This formulation
of the legitimate state interest is focused on the argument by
N’Da and Dignity NEMT that the public convenience and
necessity requirement serves to protect existing carriers by
restricting the entry of new applicants into the relevant mar-
kets. This argument, however, seems more directed to the
way the public convenience and necessity requirement has
been applied by the PSC to them and to other new applicants.
Because our review is limited to the facial challenge and does
not resolve the as-applied challenge, we focus on the “conve-
nience and necessity” statutory language of § 75-311(1)(b) and
(3), rather than the manner in which it has been applied in this
case and other cases.
By focusing on the statutory language, we find a more
general legitimate state interest in a public convenience and
necessity requirement that focuses on protecting the members
of the public who rely on the relevant transportation services.
The public convenience and necessity requirement appears
to focus on ensuring that reliable transportation is being pro-
vided by qualified carriers and that there is a public need for
new carriers. The public convenience and necessity require-
ment is rationally related to ensuring reliable transportation
services to the public and to Medicaid recipients specifically,

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because an oversaturation of carriers in the market beyond the
saturation required by public convenience and necessity could
threaten the stability and reliability of the services provided.
The district court reviewed various federal cases involv-
ing similar requirements. Among these cases was Tiwari v.
Friedlander, 26 F.4th 355 (6th Cir. 2022), which we find
particularly instructive in certain aspects of our rational basis
review of the public convenience and necessity requirement.
Generally, Tiwari involved a due process challenge under the
federal Constitution to a Kentucky law that required applicants
seeking a license for providing home health care services to
obtain a certificate of need by demonstrating a public need
for such services. The Sixth Circuit Court of Appeals deter-
mined that those challenging the regulation “may invoke the
Fourteenth Amendment to target laws that impose substantive
restrictions on individual liberty, including the right to engage
in a chosen occupation,” Tiwari, 26 F.4th at 360, but that the
“threshold for invalidating a state law on this basis is high”
because such “[e]conomic regulations, even those affecting
an individual’s liberty to work in a given area,” are subject to
rational basis review, id. at 361. The Sixth Circuit further rec-
ognized that “rational-basis review epitomizes a light judicial
touch”; that if a regulation passes such review, “the law must
stand, no matter how unfair, unjust, or unwise the judges may
see it as citizens”; and that “a law may be incorrigibly foolish
but constitutional.” Id. at 361.
A large part of N’Da and Dignity NEMT’s argument in this
case is that the public convenience and necessity requirement
has the effect of protecting existing providers at the expense
of new providers who wish to enter the market to provide
nonemergency medical transportation. The Sixth Circuit in
Tiwari addressed such an argument regarding laws that protect
existing providers. It stated that “[a] law that serves protec-
tionist ends and nothing else . . . does not satisfy rational-basis
review,” id. at 367-68, and that “a law defended on protection-
ist grounds alone—denying individuals a right to ply their

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trade solely to protect incumbents—would not satisfy rational-
basis review,” id. at 368. But the Sixth Circuit recognized
that courts sometimes uphold laws that have an element of
protectionism and that “they tend to do so on the ground that
a public interest (other than protectionism or a wealth trans-
fer for its own sake) supports the law.” Id. at 368. Regarding
the Kentucky law regulating health care that was at issue in
Tiwari, the Sixth Circuit stated, “Protectionist though this law
may be in some of its effects, that is not the only effect it has
or the only goal it serves,” and “[i]n the intensely regulated
market of healthcare, Kentucky has shown that its regulations
potentially advance a legitimate cause” thereby providing a
rational basis for the regulation. 26 F.4th at 368.
The Sixth Circuit addressed a specific “protectionist feature
of the law” at issue in that the challengers “argue[d] that the
law favors incumbents over new entrants” and “would allow a
sharp-elbowed incumbent theoretically to expand . . . , forever
prohibiting a start up from obtaining permission to enter the
market.” Id. But the Sixth Circuit determined that “a rational
basis, even if a debatable one, supports the discrepancy” and
that the “disparity comports with the law’s justifications, or at
least a legislator plausibly could think so.” Id.
To the extent our review is limited to a facial challenge to
the public convenience and necessity requirement, we deter-
mine that the statutory language does not inherently implicate
unacceptable protectionist concerns. The statutory language
requiring a showing of public convenience and necessity
focuses on protecting the public need for reliable transporta-
tion services. Such requirement can be applied in a manner
that focuses on the public interest rather than the private inter-
est of existing carriers. In a facial challenge, it must be shown
that there is no constitutional application of the law, and we
determine that was not shown here.
In this regard, we note that this court has long stated that
“[i]n determining public convenience and necessity, the
deciding factors are (1) whether the operation will serve

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a useful purpose responsive to a public demand or need,
(2) whether this purpose can or will be served as well by
existing carriers, and (3) whether it can be served by the
applicant in a specified manner without endangering or
impairing the operations of existing carriers contrary to
the public interest.”
Tymar v. Two Men and a Truck, 282 Neb. 692, 695, 805 N.W.2d
648, 653 (2011) (quoting In re Application of Nebraskaland
Leasing & Assocs., 254 Neb. 583, 578 N.W.2d 28 (1998)). See,
also, In re Application of Moritz, 153 Neb. 206, 43 N.W.2d 603
(1950). While this formulation of the public convenience and
necessity requirement entails some consideration of interests
of existing carriers and whether operations of existing carriers
may be impaired by new carriers, we read these considerations
as being within the greater context of considerations regarding
the public interest. That is, the interests of existing carriers
must be considered in the context of whether negative effects
to existing carriers will negatively affect the public need for
reliable transportation services. The ultimate consideration is
not how existing carriers will be affected but how the public
interest will be affected.
To the extent the public convenience and necessity require-
ment could be applied in a manner that emphasizes the pro-
tection of existing carriers over the public interest in provid-
ing reliable transportation, we think that such a challenge is
more properly characterized as an as-applied challenge. An
as-applied challenge asserting that the PSC has applied the
public convenience and necessity requirement in a manner that
emphasizes the private interest in protecting existing carriers
over the public interest would more properly be addressed
in a proceeding before the PSC for certification and autho-
rization under § 75-311(1)(b) and (3), and an appeal from a
denial by the PSC of certification and authorization. Such a
proceeding would inherently provide better information and
evidence regarding how the public convenience and necessity

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requirement is being applied to a specific carrier or to new
carriers generally.
We conclude that the statutory public convenience and
necessity requirement of § 75-311(1)(b) and (3) is rationally
related to a legitimate state interest in ensuring reliable non-
emergency medical transportation services to the public and
specifically to Medicaid recipients. We therefore affirm the
district court’s order to the extent it rejected N’Da and Dignity
NEMT’s facial challenge to the public convenience and neces-
sity requirement based on the due process clause of Neb.
Const. art. I, § 3, and reject N’Da and Dignity NEMT’s first
assignment of error that claims to the contrary.
Special Legislation Challenge.
N’Da and Dignity NEMT’s second constitutional chal-
lenge to the public convenience and necessity requirement
of § 75-311(1)(b) and (3) is based on Neb. Const. art. III,
§ 18, which provides that “[t]he Legislature shall not pass
local or special laws in any of the following cases,” including
“[g]ranting to any corporation, association, or individual any
special or exclusive privileges, immunity, or franchise what-
ever.” They claim that the district court erred when it held
that the public convenience and necessity requirement did not
violate the special legislation clause. We reject this assign-
ment of error.
[14] A legislative act constitutes special legislation if (1) it
creates an arbitrary and unreasonable method of classification
or (2) it creates a permanently closed class. REO Enters. v.
Village of Dorchester, 312 Neb. 792, 981 N.W.2d 254 (2022).
In this appeal, N’Da and Dignity NEMT state that they are not
invoking the aspect of the special legislation clause regarding
permanently closed classes, and they do not challenge the dis-
trict court’s finding that the public convenience and necessity
requirement does not create a closed class.
N’Da and Dignity NEMT instead argue that the public
convenience and necessity requirement creates an arbitrary
and unreasonable method of classification. They cite J.M. v.

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Hobbs, 288 Neb. 546, 558, 849 N.W.2d 480, 489 (2014), for
the proposition that under special legislation analysis, “legisla-
tive classifications must be real and not illusive” and “cannot
be based on distinctions without a substantial difference.” They
also note that we have stated that “[t]he test of validity under
the special legislation prohibition is more stringent than the
traditional rational basis test.” Haman v. Marsh, 237 Neb. 699,
713, 467 N.W.2d 836, 846-47 (1991). They argue that the dis-
trict court erroneously applied a rational basis test.
In its special legislation analysis, the district court referred
to its due process analysis and its finding that the public conve-
nience and necessity requirement was related to the legitimate
governmental interest in regulating nonemergency transporta-
tion services. Despite this seeming reference to a rational basis
test, we agree with the district court’s ultimate determination
that the public convenience and necessity requirement did not
create an arbitrary and unreasonable classification.
We have stated that “special legislation analysis focuses on
a legislative body’s purpose in creating a challenged class and
asks if there is a substantial difference of circumstances to
suggest the expediency of diverse legislation” and that “[t]he
prohibition aims to prevent legislation that arbitrarily benefits
a special class.” J.M. v. Hobbs, 288 Neb. at 557, 849 N.W.2d
at 489. We emphasize again that in this appeal, we review
the district court’s order only to the extent it ruled on a facial
challenge and not to the extent it ruled on an as-applied chal-
lenge. We therefore focus on the statutory language rather
than the manner in which statutory language might have been
applied to a specific applicant or group of applicants. In that
respect, there is nothing on the face of the statutory public
convenience and necessity requirement of § 75-311(1)(b) and
(3) that makes an arbitrary and unreasonable classification.
The statutory language does not arbitrarily benefit a specific
class, and instead, it sets forth a standard requirement that
must be shown by any applicant. The requirement itself rep-
resents a “substantial difference of circumstances to suggest

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the expediency of” the classification between those applicants
who can show public convenience and necessity and those
who cannot. See J.M., 288 Neb. at 557, 849 N.W.2d at 489.
We determine that the classification made by the requirement
is real and not illusive, that the classification is not based on
distinctions without a substantial difference, and that therefore,
the statutory public convenience and necessity requirement is
not arbitrary or unreasonable and does not violate the special
legislation clause. We affirm the district court’s order to the
extent it rejected N’Da and Dignity NEMT’s facial challenge
to the public convenience and necessity requirement based on
the special legislation clause of Neb. Const. art. III, § 18. We
reject this assignment of error.
Special Privileges and Immunities Challenge.
N’Da and Dignity NEMT’s third constitutional challenge
to 	the 	public 	convenience 	and 	necessity 	requirement 	of
§ 75-311(1)(b) and (3) is based on Neb. Const. art. I, § 16,
which provides in relevant part, “No . . . law . . . making any
irrevocable grant of special privileges or immunities shall be
passed.” N’Da and Dignity NEMT claim that the district court
erred when it determined that the public convenience and
necessity requirement did not violate the special privileges and
immunities clause. We reject this assignment of error.
We note as an initial matter the district court stated that this
court has construed other constitutional provisions as coex-
tensive with related provisions of the federal Constitution and
that it therefore reviewed case law related to the “Privileges
or Immunities Clause” of U.S. Const. amend. XIV, § 1, which
provides, “No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States.” We find this portion of the district court’s analysis to
be misguided. The focus of the federal clause is to prohibit
government abridgment of citizens’ “privileges or immuni-
ties,” whereas the focus of Neb. Const. art. I, § 16, is designed
to prohibit the government from “making any irrevocable grant
of special privileges or immunities.” Because the federal and

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the Nebraska provisions have different purposes, we disavow
any suggestion that the provisions are coextensive.
The district court stated, and the parties appear to agree, that
a challenge under Neb. Const. art. I, § 16, is “seldom brought.”
As a result, there is little precedent applying the special privi-
leges and immunities clause. The district court cited State ex
rel. Meyer v. Knutson, 178 Neb. 375, 379, 133 N.W.2d 577,
581 (1965), for the proposition that
[S]tatutes which are reasonably designed to protect
the health, morals, and general welfare do not violate the
Constitution where the statute operates uniformly on all
within a class which is reasonable. This is so even if the
statute grants special or exclusive privileges where the
primary purpose of the grant is not the private benefit of
the grantees but the promotion of the public interest.
The district court also cited Yant v. City of Grand Island, 279
Neb. 935, 943, 784 N.W.2d 101, 108 (2010), for the proposi-
tion that “incidental benefits do not render a statute unconsti-
tutional when enacted for a public purpose.” However, these
cases do not appear to involve challenges under Neb. Const.
art. I, § 16. The quote from Yant appears to be related to the
special legislation clause of Neb. Const. art. III, § 18, and
Knutson speaks of constitutionality generally without specify-
ing the constitutional provision at issue. Unlike the district
court, we do not find these cases helpful.
N’Da and Dignity NEMT cite Nelsen v. Tilley, 137 Neb.
327, 334, 289 N.W. 388, 393 (1939), in which this court
found part of a statute regulating car dealerships unconsti-
tutional because “[t]he effect would be that the business of
selling new cars would be monopolized by dealers enfran-
chised by the manufacturers.” N’Da and Dignity NEMT
argue that the public convenience and necessity requirement
similarly allows existing carriers to monopolize the provision
of nonemergency medical transportation services. Although
Neb. Const. art. I, § 16, was mentioned in Nelsen, it was one
of several constitutional provisions cited, and it is not clear

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how the proposition specifically relates to the special privi-
leges and immunities clause. N’Da and Dignity NEMT also
refer to Finocchiaro, Inc. v. Nebraska Liq. Cont. Comm., 217
Neb. 487, 351 N.W.2d 701 (1984), which cites Nelsen, but
the constitutional challenge in Finocchiaro, Inc., was made
under Neb. Const. art. I, §§ 3 and 25, and not Neb. Const.
art. I, § 16.
The State in its brief for the appellees asserts that in Staley
v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006), this
court suggested that the standard for the special privileges and
immunities clause of Neb. Const. art. I, § 16, is identical to the
standard for the special legislation clause of Neb. Const. art.
III, § 18. The State also argues that, based solely on the lan-
guage of Neb. Const. art. I, § 16, the public convenience and
necessity requirement § 75-311(1)(b) and (3) does not violate
the clause because it does not create an “‘irrevocable’” grant
of special privileges or immunities, because any certificate
issued under the statute may be revoked. Brief for appellees
at 55.
We determine that, as the State argues, the statutory pub-
lic convenience and necessity requirement does not violate
the plain language of the special privileges and immunities
clause because it does not create any privileges or immunities
that are irrevocable. We further note the district court found
that the public convenience and necessity requirement was
related to promoting the health and welfare of the citizens
of Nebraska and that “its purpose is promotion of the public
interest . . . rather than granting a benefit to private transpor-
tation providers.” Because the requirement is focused on the
public interest rather than granting a benefit to private persons
or entities, we find it does not grant “special” privileges or
immunities prohibited under Neb. Const. art. I, § 16.
We note again that our review is limited to the facial chal-
lenge. We determine that the statutory language requiring a
finding of public convenience and necessity does not violate
the special privileges and immunities clause. Our review does

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not consider whether the way in which the public convenience
and necessity requirement has been applied in a specific case
or group of cases violates the constitutional requirement by, for
example, emphasizing private privileges or immunities over the
public interest.
We affirm the district court’s order to the extent it rejected
a facial challenge to the public convenience and necessity
requirement based on the special privileges and immunities
clause of Neb. Const. art. I, § 16. We reject this assignment of
error that claims to the contrary.
CONCLUSION
We determine that this declaratory judgment action was
appropriate to the extent N’Da and Dignity NEMT raised
facial challenges to the public convenience and necessity
requirement of § 75-311(1)(b) and (3). We further determine
that the district court did not err when it rejected each of
N’Da and Dignity NEMT’s facial challenges. However, to the
extent their challenges were as-applied challenges, we deter-
mine that there is an equally serviceable remedy by raising
an as-applied challenge in an application for certification and
authorization under § 75-311(1)(b) and (3) and an appeal from
a denial of such application. Based on this determination,
declaratory and equitable relief with respect to the as-applied
challenge was not appropriate and rulings thereon should be
vacated. In summary, we vacate the district court’s order to
the extent it ruled on as-applied challenges and affirm the dis-
trict court’s order to the extent it rejected N’Da and Dignity
NEMT’s facial challenges.
Affirmed in part, and in part vacated.
Papik, J., concurring.
M’Moupientila “Marc” N’Da wishes to provide nonemer-
gency medical transportation in the State of Nebraska through
his company Dignity Non-Emergency Medical Transportation,
Inc. Under Nebraska law, however, one cannot start providing
such transportation without first getting a certificate from

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the Nebraska Public Service Commission (PSC). One of the
factors the PSC is directed to consider in deciding whether
to grant such a certificate is whether the proposed service is
required by “public convenience and necessity.” Neb. Rev.
Stat. § 75-311(1)(b) (Cum. Supp. 2024). Having been turned
away by the PSC once on the ground that he could not satisfy
the public convenience and necessity requirement, N’Da did
not appeal, but instead initiated this action. He challenges
the public convenience and necessity requirement on consti-
tutional grounds and seeks an order that would preclude the
PSC from considering it in processing a future application he
would file.
I agree with the majority opinion’s conclusion that N’Da is
not entitled to the order he seeks in this action. I agree with
the majority’s analysis that N’Da has not shown that the public
convenience and necessity requirement is facially unconstitu-
tional. And to the extent N’Da also asserts that the way the
PSC applied the public convenience and necessity requirement
to him was unconstitutional, it is my view he is making an
impermissible collateral attack on the PSC’s earlier denial of
his application for a certificate. See In re Applications T-851 &
T-852, 268 Neb. 620, 686 N.W.2d 360 (2004).
Despite all that, I write separately in this case to emphasize
that our determination that N’Da is not entitled to relief in this
case should not be understood as an expression of approval of
the PSC’s decision to deny N’Da a certificate. Indeed, after
reviewing this case, I have concerns about whether the pub-
lic convenience and necessity requirement is being correctly
applied in the nonemergency medical transportation context.
Facial Challenge.
Before discussing my concerns with the application of the
public convenience and necessity requirement, I wish to com-
ment briefly on N’Da’s facial due process challenge to that
requirement. For reasons stated in the majority opinion, I
agree that, under this court’s recent cases, such a challenge is

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subject to a rational basis review and our analysis is properly
focused on the statutory language as opposed to the way that
language has been applied.
As the majority opinion explains, a law passes rational basis
review if the law is rationally related to a legitimate state
interest, a relatively lenient standard. In this case, the State
defended the public convenience and necessity requirement
set forth in § 75-311 by arguing that it serves the interest of
preventing “destructive competition.” Brief for appellees at 46.
Because a law “defended on protectionist grounds alone . . .
would not satisfy rational-basis review,” Tiwari v. Friedlander,
26 F.4th 355, 368 (6th Cir. 2022), the State could not success-
fully defend the law on the ground that it prevents “destructive
competition” if that referred solely to keeping new entrants
to the market from harming the bottom lines of incumbent
providers. Accordingly, as I understand the State’s position,
“destructive competition” refers to a hypothesis that if an
aspiring provider of nonemergency medical transportation like
N’Da enters the market when there is not a need for additional
providers, the new entrant might drive existing providers out
of business such that, in the end, there would not be enough
providers to serve consumers.
In all honesty, I question whether the “destructive competi-
tion” scenario envisioned by the State would ever come to
pass. Even assuming that the entry of new competitors might
prompt some incumbent providers to leave the market, I do
not understand why that would result in a gap in service that
no one is willing to fill. More broadly, I am also not sure I
understand why there is a need to prevent so-called “destruc-
tive competition” in the market for nonemergency medical
transportation when consumers’ needs are met in so many
other markets without government officials being respon-
sible for achieving some optimal level of service. Finally,
the State’s rationale seems to ignore that market competition
might actually result in an improvement in the quality and
cost of service provided to users of nonemergency medical

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transportation. See, e.g., Tiwari, 26 F.4th at 366 (“we again do
not balk at the general notion that increased competition usu-
ally improves quality of care and lowers prices”).
But some judicial misgivings about a law are not enough
to invalidate it under rational basis due process review. See
Tiwari, supra. The question is whether there is a plausible
reason for the law. And, while I have qualms about the State’s
claim that the public convenience and necessity requirement
guards against “destructive competition,” I agree with the
majority opinion that we are not in a position to say that it is
so implausible that it fails rational basis review.
Public Convenience and Necessity Requirement.
But even if the 14th Amendment does not prohibit Nebraska
from empowering the PSC to determine whether public con-
venience and necessity justify allowing someone like N’Da to
enter the market for nonemergency medical transportation, I
have concerns about the way this statute is being applied. As
the majority opinion notes, this court has set forth factors to
consider in determining whether a proposed service is required
by public convenience and necessity. Those factors are
(1) whether the operation will serve a useful purpose
responsive to a public demand or need, (2) whether this
purpose can or will be served as well by existing car-
riers, and (3) whether it can be served by the applicant
in a specified manner without endangering or impairing
the operations of existing carriers contrary to the public
interest.
Tymar v. Two Men and a Truck, 282 Neb. 692, 695, 805
N.W.2d 648, 653 (2011) (internal quotation marks omitted).
As I will explain, it appears to me that the PSC may have
expanded those factors to the benefit of existing providers
and additionally that the factors themselves may be due for
reconsideration.
The PSC’s order denying N’Da’s application is part of the
record in this case. In that order, the PSC set forth various

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reasons for denying the application. Among them was that
N’Da had not “offer[ed] any evidence showing [his] entry [to
the market for nonemergency medical transportation services]
would be harmless to other carriers.” To the extent the PSC
is requiring applicants for a certificate of public convenience
and necessity to show that their entry to the market would be
harmless to other carriers, the basis for such a requirement is
not clear to me. The third factor set forth above does require
the PSC to consider whether a new entrant to the market would
“endanger[] or impair[] the operations of existing carriers
contrary to the public interest.” Id. (emphasis supplied). This
factor, as it has been articulated by this court, calls to mind
the State’s rationale that the public convenience and necessity
requirement prevents “destructive competition.” In my view,
however, there are miles of distance between, on the one hand,
considering whether a new entrant might so upset the mar-
ket of nonemergency medical transportation service such that
existing carriers would eliminate operations and thereby harm
the public and, on the other hand, requiring new applicants to
show that their entry would not in any way harm the business
of existing providers. This court has appeared to countenance
consideration of the former; I am not sure where the latter
comes from. On top of that, it is difficult to understand how
new applicants would ever, as a practical matter, prove that
their entry to the market would be harmless to existing provid-
ers, especially if the existing providers claim otherwise.
The PSC also faulted N’Da for not providing evidence that
existing carriers would be unable to meet the needs of con-
sumers in the nonemergency medical transportation market.
On this point, I acknowledge that the second factor articu-
lated by this court for determining public convenience and
necessity does appear to call for a consideration of whether
existing carriers could provide the service the applicant seeks
to provide. I have doubts, however, about whether it is con-
sistent with a public convenience and necessity requirement
for the PSC to deny an applicant a certificate on the ground

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that existing providers could provide the services the applicant
seeks to provide.
Many states require those wishing to serve as common car-
riers of various types to make a showing of public convenience
and necessity before being permitted to operate. A number of
courts from those states, however, have rejected the notion
that an applicant cannot establish that its proposed operation
is consistent with public convenience and necessity merely
because existing providers would be willing to provide addi-
tional service. In Martorelli v. Department of Transp., 316
Conn. 538, 114 A.3d 912 (2015), the Connecticut Supreme
Court considered the meaning of “public convenience and
necessity” for purposes of a statute regulating livery service. It
concluded that such language required a consideration of ben-
efits to the public and not just existing permittees.
In Martorelli, the Connecticut Supreme Court approvingly
cited Blanton’s Package, Etc. v. Pony Exp. Courier, 219 Va.
280, 247 S.E.2d 397 (1978), a Virginia Supreme Court opinion
involving a statute that required those wishing to be restricted
parcel carriers to demonstrate that the proposed service was
justified by public convenience and necessity. In Blanton’s
Package, Etc., the Virginia Supreme Court emphasized that the
“‘paramount consideration’” in judging public convenience
and necessity was “the effect certification of a new carrier will
have upon the [p]ublic, not the effect it will have upon exist-
ing carriers.” 219 Va. at 285, 247 S.E.2d at 400 (emphasis
supplied). The court acknowledged that public convenience
and necessity might entail a consideration of the prospect of
“ruinous competition” that would be “so disabling” of existing
carriers “as to disserve the public interest,” but rejected the
idea that new applicants could be denied entry merely because
existing carriers were willing to serve an identified need. Id.
“To so hold,” the court explained, would be to “equate the
vested economic interests of certificated carriers with the
necessity and convenience of the public.” Id. at 285, 286, 247
S.E.2d at 400.

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The Utah Supreme Court has also rejected the argument
that common carriers can be denied a public convenience
and necessity certificate merely because incumbent carriers
provide an adequate service and can expand to meet growing
demands. Milne Truck Lines v. Public Service Com’n, 720
P.2d 1373, 1376 (Utah 1986) (“[i]t is decidedly not the law
that established motor common carriers should be protected
by the Commission from new competition as long as they
provide a reasonably adequate service and can meet growing
demands for common carrier service”). The Utah Supreme
Court explained that in considering public convenience and
necessity, its public service commission’s duty was “to protect
the public interest, not the entrenched rights of the industry
it is charged with regulating.” Id. at 1377. It also noted that
competition “‘is almost always an affirmative factor in fur-
thering the public convenience and necessity,’” id. at 1376,
and that “the beneficial effect of competition on service and
rates, notwithstanding an adverse impact on existing carriers,
should be recognized in determining whether the public inter-
est requires new authority,” id. at 1377.
Each of the opinions summarized above was interpreting and
applying public convenience and necessity requirements simi-
lar to that found in § 75-311. These opinions make a persuasive
argument that a public convenience and necessity requirement
does not permit the denial of a certificate to a new applicant
just because existing providers would be willing to provide the
same service. To the extent our decisions have held otherwise,
I believe they may be due for reconsideration.
Given the foregoing, it should not come as a great surprise
that it is quite difficult for those applying to provide nonemer-
gency medical transportation to obtain a certificate from the
PSC if incumbent providers object. In the district court’s order
in this matter, it detailed that in cases since 2015 in which
incumbent providers have protested the application of a would-
be provider of nonemergency medical transportation, only one
new applicant has received a certificate. At the same time,

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however, the district court summarized evidence offered at
hearings on unsuccessful applications that showed that incum-
bent providers were often late in providing rides or canceled
rides altogether. If incumbent providers truly are frequently
late or canceling rides, and yet, new applications are consist-
ently denied, this too raises questions about whether the public
convenience and necessity requirement (with the emphasis on
the word “public”) is being correctly applied.
Conclusion.
In sum, while I agree with the majority that the public con-
venience and necessity requirement is not facially unconstitu-
tional, I am unsure that requirement is being correctly applied.
That said, the question of whether the applications of N’Da
and other applicants should have been approved is not before
us in this case. While N’Da could have appealed the PSC’s
denial of his application and received a de novo on the record
review by an appellate court, see Neb. Rev. Stat. § 75-136
(Reissue 2018) and In re App. No. P-12.32 of Black Hills Neb.
Gas, 311 Neb. 813, 976 N.W.2d 152 (2022), he apparently
chose not to do so. Whether the PSC was correct to deny cer-
tificates to other applicants is also obviously not before us in
this appeal.
But while this case does not present us with an opportunity
to decide whether the PSC is correctly applying the public
convenience and necessity requirement, I am hopeful this
court will consider the issues raised in this concurring opinion
should a future opportunity arise.
Funke, C.J., joins in this concurrence.