Loontjer v. Robinson

appellee Loontjer, and cross-appellant, Pat Greg and cross-appellees, et Robinson al., of State Honorable John Gale, appellee cross-appellee, and State of Nebraska, A. Bundy, Timothy intervenor-appellee cross-appellee. N.W.2d 301

Filed 2003. No. S-02-1030. October Butler, Gaiter, O’Brien, of Boehm and Patrick T. John M. Boehm, & for appellants. O’Brien Blackwell, Sanders, S. and Michael Degan, L. Steven Grasz Martin, L.L.P., Pat Loontjer. & for appellee Peper Mattson, Ricketts, Mossman, D. Spray Stephen J.L. Davies, Calkins, for Stewart & intervenor-appellee. General, A. Comer for and Dale Bruning,

Jon Attorney Gale, John Nebraska of State. appellee C.J., Wright, Gerrard, Hendry, Connolly, Stephan, and JJ. McCormack, Miller-Lerman, J. Connolly, Prososki, Robinson, Greg Charles Gerald Whitney, Harry Brown, Dodd, Forster, Lindauer, Russell Verlouis and Richard (the all members of the Committee for Local Option Gaming Committee), from the district court’s order the appeal enjoining of an initiative on the ballot. The placement petition petition the sought accomplish following:

(1) Revise the Constitution to Nebraska allow electronic gam- control; devices under local ing

(2) Provide on the limitations manner income from the gam- could be ing spent;

(3) Limit the the the to tax ability Legislature and gaming; (4) the of a Require creation commission. gaming Pat for filed relief and Appellee Loontjer declaratory sought on the ballot. enjoin placement petition The district court determined there was substantial compli- 32-1405(1) (Reissue 1998), ance with Neb. Rev. Stat. which an initiative to file a sponsors sworn requires petition statement their names street addresses. The court listing also determined, however, that single violated Const, Ill, Thus, rule Neb. art. the court enjoined the on the ballot. placement Loontjer cross-appeals that the court’s determination there was substantial compliance 32-1405(1). with §

We determine that was legally insufficient because failed include a sworn statement of their sponsors names street we affirm. addresses. Accordingly,

BACKGROUND On December submitted Initiative an appellants for Local to the Nebraska Option Gaming of State for review before circulating signatures place initiative on the ballot. The initiative was not individu- Instead, ally “THE LOCAL signed. OPTION GAMING COM- KIMBALL, MITTEE BOX 636 NEBRASKA 69145” was typed letter, at the end. The submitted a cover their appellants omitting addresses; however, it was not sworn. A handwritten note signed Prososki stated that Bill Kurtenbach “can take care of cor- for me” and respondence Kurtenbach’s provided office box post address. at trial showed that the Testimony are mem- appellants bers of the Nebraska Government Cooperative Commission (NCGC), an interlocal keno for a agency operates group cities, counties, about 72 in Nebraska. villages Kurtenbach is an attorney the NCGC. represents draft; January submitted the final draft does not contain a sworn statement of the Instead, their street addresses. contains unsworn typed sig- nature of the Committee and street provides and Internet addresses. A cover letter contains the unsworn signatures and their appellants numbers. telephone The offered appellants exhibit, statement, Kurtenbach’s sworn filed with the trial, of State 3 days before stating constitute all of the court, however, petition. ruled that the exhibit was inadmissible.

The record shows that the NCGC contracted with Community Inc., Lottery Systems, Nebraska, also known as Lotto a com- Schumacher, pany Paul operated by to run keno. Schumacher also owns an interest in Inc., Community Internet Systems, which hosts an Internet Web site for the Committee.

The record shows that the initial work on the petition was NCGC, done through and the Committee was formed later. A “Statement of Organization a Political Committee” was not filed for the 26, Committee until Robinson, December chairman of both the NCGC, Committee and the testified that the earliest versions of the petition were drafted at his request by Schumacher, Kurtenbach, and a law firm. Robinson stated that he believed Schumacher was involved in drafting He was from one.” believed drafting part “day counsel for the NCGC. of Kurtenbach’s duties general drafted, after versions had been a early already July to ask Schumacher and motion was at a NCGC passed meeting Kurtenbach to draft a minutes of the July petition. Specifically, NCGC state: meeting

Item 7: action on legisla- No. Discussion and gaming tion in the 2001 and legislative session initiative petitions Forster,

Motion- Whitney, second- Lotto encourage (1) Nebraska and the NCG General Counsel to cause an drive to be commenced that would per- mit cities and counties to conduct chance skill games or any combination thereof activated elec- using player tronic devices for the of local gaming tax relief Nebraska, Nebraska in (2) resources form keeping alliances to necessary circulation and accomplish November, 2002, of such passage a in the general election ....

The motion On October passed unanimously. NCGC voted to endorse the enactment of the The record petition. also contains evidence that Schumacher asked the Committee to “sponsor” When Robinson petition. delivered signed peti- tions to the of State’s office in July he delivered that Schumacher speech draft. Schumacher helped arranged paid Robinson to arrive at the State Capitol Building by charter airplane.

Kurtenbach testified that several people, including Schumacher, had the initial idea to seek a constitutional amend- ment to allow video Kurtenbach gambling. agreed that a section of the initiative that no requires gaming shall operator licensed unless it has demonstrated proficiency operating local government lotteries. Kurtenbach believed around dozen com- Kurtenbach, panies would meet the requirement. According himself, various Schumacher, people, including and Whitney drafted language the petition.

Schumacher has been described as the person who spear- headed the for the fundraising Committee after it was formed. $62,000 Schumacher or his corporation contributed to the Robinson, Committee. to According Schumacher was not made had his company because petition “official sponsor” an Schumacher was passed. if the initiative to profit the potential a constitu- to to get initial idea try was not his that it testified Instead, testified he video allowing gaming. amendment tional interest in seeking that had an or groups several about people in the drafting proc- involved being admitted to amendment. He or the of the ess, forms early drafting but denied Schumacher, Kurtenbach’s it was According entire petition. in the was involved Schumacher the Committee. idea to form of that but the level on the obtain signatures petition, process unclear. involvement is that he believed of State testified

The Secretary deputy He stated that his were the appellants. of the petition sponsors for sponsors at the bottom of petition office a place provides where to return signed peti- information regarding place tions, the name and address which in this case was information of the Committee. determined received that the petition

The of State sought it on the ballot. Loontjer enough signatures place relief to from being declaratory injunctive stop (1) failed that the on the ballot. Loontjer alleged placed of its in violation of to include a sworn statement Const, 32-1405; (2) violated the rule under single subject Ill, 2; title; (4) (3) art. contained an insufficient ballot vio- lated the taxing authority Legislature. Appellee Timothy A. intervened with the same but did not chal- Bundy allegations the existence of a sworn statement. of State lenge was named as a defendant to the action. whether the contained a sworn addressing petition properly

statement of the the district court determined that sponsors, Schumacher and Kurtenbach were not “sponsors” petition. The court also determined that the Committee was not a sponsor Instead, and dismissed it from the action. the court determined that the individual were appellants sponsors.

The court next determined that failed to although appellants addresses, include sworn statement with their street had they 32-1405(1). substantially complied requirements The court determined 32-1405(1) is to avoid fraud and and concluded that the had deception information to make it enough identify provided possible locate them as the of the petition. however, ruled, the the

The court that violated single rule. The court determined that the subject petition’s purpose the of The court then addressed the sin- “expansion gambling.” that the gle issue and determined of following provisions the lacked a natural or connection each necessary other or the petition:

(1) the that at least of the net 7% proceeds be used for charitable grants;

(2) the authorization that revenue obtained from the per- mitted to be used for bonuses to gambling certified teach- students; ers and of tuition credits programs (3) the the from prohibition against Legislature levying or excise tax on the any special permitted gambling; (4) the authorization for creation of what to be appear subdivisions, new means of interlocal political agree- ments; and

(5) the restriction against from authoriz- Legislature form of would ing gambling compete per- mitted gambling.

The court enjoined State from placing peti- tion on the ballot. The filed this appellants appeal, and Loontjer cross-appealed.

ASSIGNMENTS OF ERROR assign, consolidated and rephrased, (1) district court erred in failing dismiss case because the did not pleadings present justiciable that was controversy ripe (2) for determination and determining violated rule and single subject granting relief. injunctive On cross-appeal, Loontjer assigns, consolidated and rephrased, that the court erred to declare failing insuf- legally ficient for failure to include sworn statement containing names and addresses sponsors. OF

STANDARD REVIEW A which does not involve a jurisdictional question factual ais matter of law. State ex rel. dispute Steinke v. Lautenbaugh, (2002). 642 N.W.2d Neb. In an appeal sounds equity.

An action for injunction action, tries factual questions court an appellate an equitable independent conclusion and reaches a the record de novo on court, evidence when credible the trial provided, findings fact, con court the appellate issue on a material is in conflict heard that the trial judge to the fact weight and may give siders facts version of the witnesses and accepted and observed Hammond, L.L.C., 264 another. Reichert rather than Rubloff 645 N.W.2d 519

ANALYSIS Jurisdiction have that the district court should first contend The appellants did not con- justiciable the action because it present dismissed that was for determination. troversy ripe (Reissue 1998) 32-1412(2) provides: Neb. Rev. Stat. § is that an initiative or referendum petition On a showing sufficient, court, on the of application any not legally resident, and all other State may enjoin or on the official ballot officers from certifying printing election the ballot title and number of for the next general filed such measure. If a suit is against State him or her from the mea- seeking enjoin placing ballot, the sure on the official who is person sponsor be a record of the shall defendant necessary party petition in such suit.

We have stated that district court refused to address properly for relief when it a declaration that declaratory sought a prayer initiative violated the U.S. a term limits Constitution. Duggan Beermann, Neb. 544 N.W.2d 68 Under circumstances, stated, those we “The court declined correctly or to enter an unless advisory opinion any declaratory judgment and until the initiative measure was Id. at adopted.” N.W.2d at 76.

Here, 32-1412 allows a court to consider whether an ini Questions tiative is sufficient.” “legally dealing the form of a statutory provisions concerning and the technical affect the requirements sponsors legal sufficiency sufficient, of an initiative. The issue whether the is petition legally review. presented by Loontjer’s cross-appeal, ripe Sworn Statement On contends that the initiative cross-appeal, Loontjer insufficient because it not contain a does sworn state- legally

ment of the their names street sponsors listing addresses. admit that the initiative does not contain a sworn statement but that they argue substantially complied when the letter with cover the initiative contained the names of the office box addresses. post 32-1405(1)

Section provides: Prior to on obtaining signatures an initiative or refer- endum a statement of the petition, object text of the measure shall filed with the Secretary of State awith sworn statement together containing names and street addresses of every person, corporation, association sponsoring petition.

The Nebraska Constitution reserves the right of peo Const, to enact constitutional amendments ple initiative. Neb. Ill, art. 2. It also authorizes legislation facilitate the opera “ ‘ Const, Ill, tion the initiative art. process. 4.§ “[T]he constitutional provision authorizing to enact laws legislature to facilitate the operation means power enact reasonable to legislation prevent fraud or to render the the of intelligible law or proposed constitutional ’ ” Moore, amendment. . . .” ex State rel. v. 258 Stenberg Neb. 199, 211, 602 (1999). N.W.2d 474 and the Legislature electorate are concurrently in rank as equal sources of legislation, and authoriz provisions the initiative ing should be construed in such a manner that the Thus, legislative reserved power Id. people effectual. “ we stated that of ‘the initiative must be power liberally con strued promote to democratic and that the process of right initiative constitutionally should not be provided circumscribed by restrictive or narrow and legislation strict of interpretation 212-13, the statutes pertaining to exercise.’” Id. at 602 i[t]s N.W.2d at 476. Because we avoid limiting of initiative right have, in some cir- we interpretation, or narrow strict

through with the statutes cumstances, compliance allowed substantial See, id.; ex rel. Morris v. State e.g., to initiative. pertaining Marsh, (1968). 162 N.W.2d This for a sworn addressed the requirement court specifically Winter, Swanson, State, ex v. rel. by sponsors statement State, Winter, In rel. ex N.W. that were accept petitions of State refused a statute that provisions pre- in conformance statement That statute a sworn 32-1405(1). required ceded § of the associations sponsors people names containing cost of the money defray peti- that contributed or pledged Laws, ch. 184-85. We stated that See 1939 Neb. p. tion. the names was filing the provision requiring We then rejected fraud safeguard against deception. of the statute were argument provisions directory stating: instead mandatory,

It seems to that none of the of a statute directory us features It would to us that an in this case. seem anoma- present lous would be created if statutory safeguards situation of frauds and were held against perpetration deceptions to be Such must their nature directory. requirements very or the of the mandatoiy, purposes legislature will be hold defeated. We completely of the provisions statute herein discussed are and that the mandatory failure of relators therewith the action of the comply justifies of state in file the same. secretary refusing State, Winter, Swanson, ex rel. 138 Neb. at 294 N.W. at laterWe distinguished sworn statement mandatory require- ment from a situation the late of a verified involving filing state- ment contributions and expenses. the case of a late filing which was and met all the other ultimately complete requirements statute, we allowed substantial State ex rel. compliance. Marsh, Morris, Morris v. In State ex supra. rel. we specifically State, Winter, noted the failure of the complete relators in ex rel. to file a and the copy sworn statement.

Here, the ask us to determine that sub they stantially complied with the sworn statement requirement of Instead, 32-1405(1), we determine but we decline to do so. As we sworn statement stated provision mandatory. State, Winter, ex rel. of the statute is not language directory. Further, a is not an onerous sworn statement

Requiring duty. serves several sworn statement requirement important statement, First, a sworn sponsors purposes. providing take for the themselves expose responsibility falsified. See Neb. criminal if information is potential charges (Reissue 1998) Stat. 32-1502 election falsifica- Rev. (making tion under oath Class IV This felony). prevents Second, fraud allows the public process. provision the media to scrutinize the and the validity completeness any affect the list of could sponsors. Knowing petition’s sponsor For a view about an initiative public’s petition. example, petition to some casino have less large might appeal sponsored local citi- members of the than a public petition sponsored by A and their street addresses zens. sworn list of the sponsors whether to allows the to make an informed public judgment sign Third, 32-1412, the of an initiative under petition. sponsor shall be a suit seeking enjoin place- necessary party The failure to a sworn ment of an initiative on the ballot. provide can frustrate the statement of the and street addresses sponsors in a lawsuit. necessary ability join parties Here, some street the statement of the omitted sponsors failed and it was never sworn. Because the appellants addresses statement, the insufficient. legally to file a sworn exhibit containing offered an Although appellants trial, the statement was pro sworn statement 3 before days was circulated of State before the petition vided to the Secretary into evi did not allow the exhibit The district court for signatures. dence, do so the court’s refusal to and the do not assign court, error an alleged as error. To be considered by appellate in the argued must be both assigned specifically specifically State, error. Forgét asserting brief party Thus, exhibit. we do not consider the 658 N.W.2d 271 because was insufficient The initiative petition legally and their street statement of the omitted a sworn should have enjoined the district court addresses. Accordingly, a sworn it lacked on the ballot because the initiative placing Instead, the court placing peti- statement. the district enjoined rule. it violated the single subject tion on the ballot because we do not on Loontjer’s cross-appeal, Because we affirm based rule, we whether nor do address address the single subject the and were of Schumacher Kurtenbach petition. Affirmed. C.J., in the result. concurring Hendry, However, I I with the result reached the by majority. concur write with the majority’s I separately respectfully disagree sub- that it not decide whether conclusion need (Reissue 32-1405(1) Neb. Rev. with Stat. stantially complied § view, 1998). considered In the district court my appropriately that substantial correctly substantial determined compliance 32-1405(1) with was shown. compliance Winter, Swanson, 597, State, 138 Neb. on ex rel. Relying state- (1940), holds that sworn majority 294 N.W. 32-1405(1) than direc- ment of rather mandatory provision However, factual distinctions our tory. given recognition be circumscribed by that “the of initiative . . . should not right to . of the statutes . . narrow strict interpretation pertaining Marsh, exercise,” State ex rel. Morris v. i[t]s State, do ex rel. (1968), I not believe N.W.2d Winter, substantial compliance. precludes Marsh, com-

In in which we substantial a case supra, applied had substantially we determined that the pliance, petitioners complied statutory requirements predecessor 32-1405(1) and affirmed the district court’s decision to require on the ballot. substantial Although State to place in address the was invoked Marsh to compliance specifically statement, absence of a we nonetheless distinguished verified State, Winter, State, Winter, rel. “involved ex rel. ex noting by failure to both the of the form of petition file complete copy Marsh, sworn used and statement.” preliminary Marsh, at 162 N.W.2d at 270. such distinction noting State, Winter, recogniz- I should be read as believe ex rel. simply in a sit- compliance substantial ing the impossibility applying fail- demonstrated clearly “complete uation where record ure” comply.

It is axiomatic that without some level of there compliance, can never be substantial The case before us is not compliance. in which there was a failure” to “complete comply Rather, 32-1405(1). final the record shows that the draft of the with a cover letter signed proposed petition, together which included either a street address or appellants, post office box for each was filed with the appellant, Moreover, State. drafts and cover letters had preliminary previ State, been which submitted to ously ultimately culminated in the initiative at issue. Given the impor structure and tance the initiative our governmental process that “the of initiative ... should not be circum recognizing right and strict scribed restrictive narrow legislation interpreta exercise,” Marsh, 183 Neb. tion of the statutes pertaining i[t]s 531, 162 269,1 would reach the issue of substantial at N.W.2d at issue, with the district court In I reaching agree compliance. 32-1405(1) with has been shown. that substantial compliance 32-1405(1) the through Section is of part legislative procedure their of initiative. which citizens of Nebraska exercise power stat- court has the of this process, This emphasized importance of ini- “The decisions almost hold that the universally power ing: to the democratic tiative must be construed liberally promote of initiative constitutionally provided and that the right process or narrow restrictive legislation should not be circumscribed by to its exercise.” of the statutes pertaining and strict interpretation 521, 531, Marsh, 162 N.W.2d 183 Neb. State ex rel. Morris v. “ 262, of ini- further stated that right 269 We have ‘[t]he are one which the courts tiative is to the and is precious people well of as spirit zealous to to the fullest tenable measure preserve ” 636, 632, Beermann, Brant v. 217 as letter.’ State ex rel. Jordan, 32 Cal. (1984) McFadden v. 350 N.W.2d 21 (quoting (1948)). 2d P.2d 787 statute, been of a has

Substantial in the context compliance, defined as essential to to the substance

“actual compliance respect It means that a of the statute. reasonable every objective has been fol- whether the statute court should determine intent for which it out the lowed so as to sufficiently carry with a statute was Substantial adopted. compliance to that the the shown unless it is made purpose appear What sub- statute is shown to have been served. constitutes with a is a matter on stantial statute compliance depending the facts of each case.” particular Hazeltine, (S.D. 1996). The Larson v. 552 N.W.2d key determination, therefore, the of the statute is identifying purpose and whether that has been served. purpose Winter, State, Swanson, ex rel. of the (1940), N.W. this court discussed purpose 32-1405(1) as follows: statutory predecessor be filed that the form of the petition The requirement were of state before the circu- petitions with secretary advance as to lated is calculated to advise the electorate in of the the exact provisions proposal through publicity is ren- from its this means resulting filing. By proposal and the of fraud intelligible possibilities greatly dered name every reduced. person, or or con- sponsoring association corporation the cost of contributions tributing pledging defray be filed and circulation petitions printing preparation, likewise a fraud and against safeguard deception. Thus, State, Winter, ex rel. to be served according purpose 32-1405(1) is fraud what is now safeguard against exact informing public proposal, provisions well as such identifying proposal. us,

I the record given filings believe before 32-1405(1); thus of State met with the statute. appellants substantially complied Pat the fail to sub- contends that Loontjer appellants’ filings 32-1405(1) with three reasons. stantially comply essentially § First, the of a sworn is to that statement Loontjer argues purpose contends that under fraud prevent deception. Loontjer laws, the of a false statement under Nebraska’s election making to a liable for criminal signer oath is a crime and the hold ability fraud and deception. acts to safeguard against possible penalties fortiori, 32-1405(1) has the of A reasons Loontjer purpose therefore, and, has not compliance substantial not been met been shown.

However, that concur with district court’s determination I the 32-1405(1) “facilitate criminal the of is not to primary purpose observed, addition, In the district court although as prosecution.” State, Winter, the name of every spon- ex rel. “required] person an initiative a fraud soring ‘safeguard against petition [a]s ” State, Winter, ex rel. “did not state that the of filing deception,’ a sworn statement such a In the district provided safeguard.” order, reasoned, I court’s that agree, statement under oath veri-

[although a made having fied facilitate criminal it does seem may not prosecution, to a realistic believe that who is intent on person engaging in a to be is deterred whatever ramifi- deception going cations there be of a statement under oath to falsifying the of Secretary State.

Furthermore, earlier, 32-1405(1) as stated the purpose to against fraud and who safeguard those deception by requiring are the initiative in a sponsoring identify themselves sworn filed statement with of State. The district court found individuals who the cover letter that signed was filed with State in fact were the actual ini- record, tiative de novo review the sponsors. my giving fact weight that the trial judge heard and observed wit- another, nesses and one version of the rather accepted facts than Hammond, L.L.C., see Reichert v. Rubloff (2002), such, N.W.2d 519 I reach the same conclusion. As served, 32-1405(1) been has notwithstanding absence of sworn statement.

Second, Loontjer contends “street each addresses” for sponsor safeguards fraud and against decep- tion. argues that office boxes are “street Loontjer post not addresses” and failure provide “street addresses” for all However, does sponsors substantially with statute. comply how, instance, I fail to see in this failure include all “street addresses” safeguard fraud and against deception. Loontjer that “the street addresses for the simply argues were needed for summons and subpoenas, and most were not avail- However, able.” Brief for at 30. appellee Loontjer the district observed, that, court is clear . . . information pro- “[i]t work, vided the individual defendants and a little [Loontjer] 916 service on necessary perfect the information able to secure

was individuals defendants.” [sic] Schumacher, the Nebraska Paul asserts that Finally, Loontjer (NCGC), and the Commission Government Cooperative Committee) (the are spon- Local Gaming Committee for Option filed with to list them in the documents and that the failure sors 32-1405(1). State violates Secretary § in 32-1405(1), is not defined The term as used “sponsor,” which the initiative proc- the statutes forth setting procedure is defined as “one who assumes ess is to be exercised. “Sponsor” Webster’s Third for some other or person thing.” responsibility (1993). New International Dictionary, Unabridged In a definition of the term in this circum- adopting “sponsor” stance, we must in mind that “the of initiative . . . keep right should not be circumscribed restrictive or narrow legislation and strict of the statutes exer- interpretation pertaining i[t]s State, Marsh, ex rel. Morris cise.” Neb. framework, N.W.2d Within that it seems rea- to define sonable one who identifies himself or sponsor simply herself as to assume willing once the statutory responsibilities See, has 32-1405(2) commenced. process e.g., (requir- of State to ing Secretary provide sponsor(s) suggested made to Statutes); initial Revisor of changes proposal by 32-1409(3) (Reissue 1998) Rev. Stat. (requiring Secretary whether, State to “the notify initiative” person filing opin- State, ion of Secretary sufficient valid signatures have been collected to meet constitutional and statutory requirements); 32-1412(2) (Reissue Neb. Rev. Stat. 1998) (notifying spon- sors) that in suit commenced to enjoin State ballot, from measure on official placing of record will sponsor(s) view, defendant(s) suit). in such party those my individuals agreeing such accept responsibilities were identified in the documents filed with the of State. brief,

In her Loontjer specifically contends that “Schumacher to hide his sought involvement the petition] by creating [with Hence, sham committee to advance the Petition. the Committee ... was formed.” Brief for at appellee Loontjer fur- Loontjer Schumacher, ther alleges Kurtenbach, together with Bill NCGC, counsel for the legal “recruited the same seven people Thus, who serve on the to serve on the Committee.” Id. [NCGC] concern to be that Schumacher’s Loontjer’s appears backing, otherwise, financial was such that he must be identified as a further, sponsor Kurtenbach’s involve- However, instance, ment similarly involved the NCGC. in this I do not believe such support equates sponsorship. 32-1405(1) predecessor to of a state- required filing §

ment “the name or containing names every person, corporation or association said or or sponsoring contributing pledg- contribution ing money or other value” with the things Laws, of State. Secretary See 1939 Neb. (Emphasis supplied.) ch. Thus, even the p. 32-1405(1) rec- predecessor § § distinction between who ognized possible one a peti- tion initiative and one who financially contributes to that effort. codified, 32-1405(1),

Section as even currently goes further by eliminating filing with the Secretary of State for those to such financially contributing effort. Such involvement must now be disclosed with the by filing Nebraska See, and Accountability Disclosure Commission. Neb. Rev. e.g., Stat. (Reissue 49-1454 and 49-1455 §§ 1998 & Cum. Supp. 2002). The record shows that Schumacher’s financial contribu- tions, Inc., made through were Community Lottery Systems, disclosed the Committee in by its with the filings Nebraska and Accountability Disclosure Commission. I summary, agree of State who Secretary persua- that argues “the main

sively 32-1405(1) is to § prevent fraud by requiring advise the petition sponsors electorate in advance as to the exact of their provisions initiative and proposal as to who sponsored their initiative. precisely Clearly, the mate- rials filed with the of State ... do that.” brief for Reply appellee of State at 13-14. that the

Although concluding have substantially I 32-1405(1), complied nevertheless concur in the result. concurrence, determines, In Justice alia, he Wright’s inter that the standard appropriate whether an initiative evaluating petition seeking constitutional amendment contains more than is the “natural and connection” necessary test set out Tusa, in Munch v. 140 Neb. 300 N.W.2d 385 (1941). I agree with Justice such believe result is Wright’s reasoning further intent determining rules for the applicable

supported amendment. of a constitutional understanding articulated standard contend The appellants (1967), Tiemann, N.W.2d 182 Neb. v. Anderson view, the In my I disagree. the amendment. should apply construing when cannot justified standard of such application Const, rel. Ill, Spire See State ex a whole. as art. (1990) (stating Beermann, N.W.2d 749 of consti- understanding intent determining with respect whole, and no amendment, part as to be construed tutional if such can be meaningless surplusage to be rejected III, 2, immediately preceding in article avoided). The sentence limita- reads: “The constitutional at issue language the amended enacted by matter of statutes and subject to the scope tions as initiative.” enacted to those shall apply the Legislature enacted by to statutes sentence clearly applies This for legislative the “one subject” requirement and “incorporates” Const, Ill, art. 14. With found in Neb. and resolutions bills to legislative “one subject” requirement respect applying resolutions, this true that in such circumstance bills and Tiemann, in set forth the broader standard court has applied however, is I argument, The appellants’ supra. problem III, 2, as a whole leads article construing do not believe that § III, to article one back § III, above from article that the sentence quoted

Given belief my initiative, 2, the amendment refers to statutes only proposed by III, 2, issue, contain measures shall only to article at “[initiative reference to the initiative remaining must be a only subject,” initiative constitutional amend- whereby being power, would, To read it otherwise ments bemay adopted by people. HI, 2, such, view, to article as a whole. As in fail consider my standard would not be that as to statutes the appropriate applied ID, 14), constitutional (article but that as to applied proposed Munch, That is found in supra. amendment. standard Munch, was a to proceeding enjoin Although placement the ballot of amendments to the of Omaha’s home rule city upon charter, observed that to form a charter we have power “[t]he be likened to the of a to form a constitution. power people may The charter of a home rule is its constitution.” Mollner v. city

919 33, Omaha, (1959). 37 98 N.W.2d 169 City of Munch, constitutional cases involving we reviewed supra, and enunciated the several embracing subjects amendments are at constitutional amendments when standard applicable than that applied is narrower That such standard issue. business in “seriousness of the statutes is a recognition be amended A act legislative may which we are engaged. A consti- of the legislature. session succeeding at repealed any more fixed and be a much per- is intended to tutional provision 150, State, Hall, Cline, 118 Neb. v. ex rel. manent thing.” See, also, 154-55, 6, Omaha Nat. N.W. Bank that differ- (1986) N.W.2d (noting 223 Neb. Spire, enacted amendment law and constitutional ences between later be in that law are and great obvious (assum- amendment but constitutional by Legislature repealed Constitution) can be only repealed not violate federal it does ing constitution). in amendment by people subsequent to the reserved right peo- The initiative is precious process however, elected constitution and their through The people, ple. which this right the manner in determine representatives, instance, an election con- exercised. In this people, to their constitu- an amendment ducted in May approved measures shall contain only tion that any requiring “[initiative one subject.” amendment, contained no Constitution this state

Prior to whether an initiative the issue of addressing language specifically more could contain amend the constitution seeking May their constitution By amending than one subject. deter- that specific question of Nebraska considered

people instance, not be shall subjects in such a multiplicity mined that deci- is not to question function of this court The permitted. reserved to the sion, peo- that the initiative process but to ensure have chosen. the people in the manner is implemented ple Tusa, 300 N.W.2d that Munch v. determination the will does not thwart standard (1941), forth the appropriate sets To pro- it. permit To the contrary, upholds of the people. the initiative through to the people measure to be submitted posed of the determination would be to effectively ignore process HI, 2, and this article in their amendment to § people expressed standard, to the amendment’s enunciated 57 years prior court’s amend- for when a constitutional determining proposed passage, court deter- more than one The district ment contains subject. the initiative violated the single subject require- mined petition in that a “myriad provisions ment of the constitution or have no natural Gaming Initiative Petition for Local Option other and/or with the sub- general connection with each necessary of the initiative After de novo review my peti- ject gambling.” tion, I I therefore concur in the result. agree.

Wright, concurring. I., not initiative at issue is There are two reasons why petition the voters. The the measure before sufficient” “legally place contain a sworn statement first reason is that the does not Therefore, I con- the names and addresses of its sponsors. listing However, I write sepa- cur in the result reached by majority. reason, if which is equally important to address second rately not more important. bar, whether the initiative

In the case at the issue is 1998) 32-1412(2) (Reissue sufficient. Neb. Rev. Stat. legally in provides part: an initiative or referendum

On a showing sufficient, court, resi- on the legally application dent, all other officers of State and may enjoin for the next from or on the official ballot certifying printing the ballot title and number of such measure. election general this court examine The is whether presented question Const, Ill, art. with Neb. compliance of the measure to determine the legal sufficiency preelection the measure has been voted whether the court must wait until boils down to the voters. This question upon passed by III, 2, for initiative whether article is a procedural I conclude that it is. petitions. III, 2, “Initiative

Article as amended 1998 provides part: shall contain one only subject.” primary measures the practice rule is to “log-rolling,” single subject prevent amendment into proposed dissimilar combining propositions even the whole package voters must vote for or against “so that had the voted differently propositions would have they though Ariz. Mofford, submitted See Tilson been separately.” 921 471, 1367, (1987). 737 P.2d The 1370 rule is to ensure designed that decisions made at the the free and mature polls represent electors, so submitted judgment cannot be con they strained to measures of which in adopt reality they disapprove, order to secure the enactment of others desire. See they earnestly Luhrs, 208, (1934). v. 44 Ariz. 36 P.2d Kerby 549 single “[The those subject who initiatives from confus prevents propose rule] or ing voters unrelated in an deceiving by inserting provisions initiative and them’ from the voters.” v. proposal ‘hiding Slayton 590, 593 166Ariz. Shumway, (1990). 800 P.2d “It prevents two from different minority groups combining proposals—and thus their votes—to obtain a in favor of the majority joint pro when neither alone achieve posal standing could such majority.” Id. serves to ensure that each single subject legislative “[The rule] its own merits for proposal depends upon passage protects fraud and occasioned the inadvertent against surprise passage of a ‘coiled in the folds’ of a complex surreptitious provision up 438, (Colo. bill.” In re Ballot Title 2001-02 No. 46 P.3d 440 rule). 2002) discussion of reasons for single subject (general initiative Prior to on an obtaining any signatures petition, the text of the measure statement of object with a sworn shall filed with the of State Secretary together of every statement the names street addresses containing per- son, Neb. or association sponsoring petition. corporation, (Reissue 1998). Stat. 32-1405 Section 32-1405 deals Rev.

the form of the and the technical requirements assess- of an initiative. ing legal sufficiency There are both constitutional and statutory prerequisites The Nebraska Constitution involved the initiative process. initiative that an must contain one subject. Clearly, requires only initiative with the that does comply requirements the voters. cannot and should not be before constitution placed duties in the review of initiative petitions The State’s Secretary Beermann, 411, 544 ministerial Neb. are in nature. v. 249 Duggan Beermann, See, also, (1996). ex rel. N.W.2d 68 State Labedz (1988). 428 608 of State is Neb. N.W.2d all the ministerial duties imposed required perform promptly Beermann, law. State ex rel. Brant v. Brant, In rel. we recognized N.W.2d State ex refuse on the ballot of State place proposed peti- are invalid unconstitutional. tions that facially III, the Secretary Prior to amendment of article the 1998 of a invalidity State was facial pass upon pro- authorized Now, that ini- the constitution requires posed petition. A which contain one subject. tiative must petitions only it does invalid because facially contains more than one an initiative order for not meet constitutional requirement. sufficient, to be it must not only comply legally 32-1405, but also technical it must comply § requirements III, of article 2. with the constitutional requirements § 2, III, was intended by I believe the amendment to article § in which ini- voters in to manner regard Legislature protect state bemay tiative amend the Constitution petitions seeking amendments are not to be proposed Constitutional presented. deals which contain multifaceted proposals. package Const, XVI, 1, Neb. art. that legislatively pro- requires § be to the vot- constitutional amendments must posed presented that vote on each amendment. The ers such can they separately 1, III, XVI, Article article is to prevent logrolling. § 2, this to constitutional amendments simply applies principle § to amend initiative An initiative by petition. petition proposing the state Constitution cannot contain multisubject proposals all the in order to which that the voters require adopt proposals the amendment. pass

As has argued long the Nebraska Constitution by Loontjer, that by measures initiatives follow the required statutory proposed to the mat- subject same “constitutional limitations as scope are See ter” as to statutes enacted the Legislature. applicable Const, Ill, subject art. This includes single require- § Const, Ill, ment for statutes set forth in Neb. art. 14. Prior to 1998, therefore, constitutional amendments legislatively proposed than were to a different constitutional were subject provision statutory proposals. statutory

The the standards for argument that appellants’ pro- must now be to constitutional amendments by posals applied XVI, 1, has no basis. Article historical con- that requires legislatively proposed Nebraska Constitution in a be to the voters manner stitutional amendments presented that vote on each I allows voters to amendment. separately with that 1998 amendment was agree Loontjer’s argument XVI, intended to emulate the of article and not requirements result, As a standards statutes. single subject amendment measures shall contain providing “[initiative one intended to is only subject” prevent logrolling. III, 2, are meant to of article afford requirements pro- to the the time the

tection at public signed by requir- Also, be in the ing only presented petition. when the initiative seeks to single subject requiring constitution, the not forced to vote for sev- amend the public eral measures in order to measure which is con- pass specific within tained the package.

The district court concluded that the standard for determining rule was whether the the single subject petition complied con- that each of its must have a natural and necessary provisions and, whole, nection with each other taken as a with the general Tusa, relied on Munch v. The district court subject. (1941), in which this court stated: 300 N.W. a constitutional amend

“The rule has been laid down that which are which embraces several all of ment subjects, of the amend (near akin) to the general subject germane ment, will, as valid under such a requirement, upheld to the as a single proposi be submitted people 299, 168 Wetz, rel. v. N.D. Fargo] tion.” ... In State [40 [ex the consid (1918)], controlling 835 it was said that N.W. is of an amendment singleness eration in the determining the details and the of relationship its of singleness purpose to the . . general subject.. of American jurisdic-

The rule followed aby majority law, where the limits of a proposed to the effect that tions is other, with each connection necessary natural and having and, the are a of one general subject, proposal together, part not dual is a a proposition. single omitted.) (Citations supplied.) (Emphasis for this pro- the foundation requirement In my opinion, to amend its con- is asked the voter when the voting public tect for which the public the measure and to define clearly stitution is voting.

924 bar, con- asked to amend the

In at the is being the case public form of the use of video slot machines as a stitution to permit contains sub- in Nebraska. In the my opinion, gambling with have natural and connection necessary that do not jects nat- have no tuition credits to students one another. For example, slot with of video legalization ural and connection the necessary Also, of authority is not taxing part machines. Legislature’s Const, VIII, 1, of Neb. art. general subject pro- gambling. its of the state and necessary vides: “The revenue governmental taxation in such manner as shall raised by subdivisions effect, initiative before direct.” In Legislature may VIII, 1. us amend article would bar, at court found In the case the district specifically did the single require- initiative comply subject of myriad ment. The court determined provisions “[a] Local have no natural Option Gaming the Initiative Petition For each the general connection with other and/or with necessary subject gambling.” “ ‘ “ out, As the constitutional pro- has majority pointed ‘[t]he laws facilitate the vision to enact authorizing legislature it rea- means that enact operation power render sonable fraud or to legislation intelligible prevent law or amendment.. constitutional proposed Moore, 199, 211, ex v. 258 Neb. Stenberg .” See State rel. Beermann, In v. 602 N.W.2d Duggan (1994), we adopt- 515 N.W.2d stated: “[I]n Constitution, themselves upon have ing imposed people their this fundamental law.” limitations on amend ability Now, a single have a amendment requiring we constitutional would reasoning for initiative the same petitions, III, in article to the constitutional apply requirement voters, order an initiative to be before the placed contain only there limitation the petition procedural if this would be frustrated The subject. objective this issue is not adjudicated preelection. Beermann, Duggan our argue that decision (1996), this court from prevents N.W.2d initiative measure before constitutionality

deciding is readily voters. In my Duggan has been opinion, approved

925 the district declined distinguishable. Duggan, court to address of the initiative constitutionality because the measure had not been an its adopted on opinion constitutionality held, alia, would be inter We that the district advisory. court had declined to an correctly enter advisory opinion declaratory unless and until judgment measure was We adopted. that stated a declaration degree appellants sought “[t]o #408, Measure if would adopted, enact amendments which Constitution, violated the U.S. or the Nebraska were an seeking Id. at 544 N.W.2d at advisory 77. opinion.” dealt, with Duggan litigate substan- part, attempt tive of the measure before it was constitutionality adopted. That Here, is not issue before we us. are not asked to decide the but, rather, substantive constitutional defects of the petition, whether it with and constitutional complies statutory prereq- for uisites before the voters. The issue is the placement legal sufficiency the initiative under 32-1405 and article III, of the Nebraska Constitution. The determination of whether measure contains more than one is a justi- issue that decided ciable must be before the initiative can be submitted the voters. Court of California in Senate the State Supreme Jones,

Cal. v. 4th P.2d 90 Cal. Cal. 2d Rptr. (1999), set forth determination concerning why single was California’s constitution subject provision ripe adju- dication before the measure was submitted to voters. until after the decision election will

[Djeferring only defeat the ... but constitutionally procedure contemplated on the contribute to an increasing cynicism part electorate to the the initiative respect efficacy process. ‘ ... defective in facially an initiative [“ “[If measure] voters to ‘wholly unjustified its allow entirety, give time, their and deliberation to thought, question as to which are to cast legislation they desirability ballots, thereafter, their if their vote be in the affirma- tive, with a confront them decree that their action judicial inwas vain... .’’’’[Citations.]”]. 1154-55, 1096-97,

Id. at 988 P.2d at Cal. 2d at Rptr. to Protect Init. Missourians Court of

The Missouri Supreme Blunt, 824, (Mo. 1990), 828 held Proc. v. 799 S.W.2d as to whether the prerequisites [a]ny controversy [the met for judicial have been is ripe one subject requirement] makes a deci- when the of State determination submit, submit, issue to the or refuse to an initiative sion to whether the as to voters. At that point, judicial opinion is no longer have been met constitutional requirements or hypothetical advisory. have also considered the

Other courts appropriateness to to of an initiative submission requirement prior single subject Nebraska, to consider the Arizona has refused the voters. Like initiative to constitutionality prior adop- petitions substantive Osborn, 247, 143 117 the voters. See State v. 16 Ariz. P. tion by 87, However, v. 166 Ariz. 800 P.2d Slayton Shumway, to (1990), enjoin the court considered an action 590 an initiative measure on of State from certifying putting was not suffi- legally The that the measure alleged ballot. parties rule. court exam- it violated the single subject cient because sub- it did not violate the single ined concluded also, See, Korte v. constitution. of the state ject requirement (action (2001) Ariz. 16 200 Bayless, seeking P.3d bal- from initiative on of State enjoin Secretary placing rule). due to violation of alleged single subject lot considered preelection The Colorado Court also Supreme In In re Ballot rule. under state’s challenges single subject Title 2001-02 No. (Colo. 2002), the court 46 P.3d sub- single discussed the Colorado’s preelection application the merits of rule: “Our role limited. We not address ject be how an initiative suggest might initiative proposed however, enacted; examine an if we must sufficiently applied determine whether or the constitutional prohibi- initiative to has containing subjects tion initiative against multiple proposals been violated.” complies

It sense decide whether initiative petition makes been rule before measure has submit- with the single subject branch is judicial One of the functions of ted to the voters. an initiative is prop- right bring that the people’s ensure will of the people, the written exercised. “Expressing erly Constitution . . . demands that initiative exercise due supporters care and caution to the significance that task.” appropriate Beermann, 544 N.W.2d Duggan (1996). A to the exercise is set prerequisite power III, 2, forth in article of the Nebraska Constitution. Had the mea- sure with the technical set forth in complied requirements 32-1405, III, 2, the issue of with article would still compliance voters, have to be decided. If the measure were adopted by would not have been they given protection required by constitution that such initiatives contain only subject.

Thus, I conclude that an initiative which on its face contains more than one cannot legally placed upon the ballot for consideration voters. The for com- necessity pliance with this before the measure is voted upon If obvious. a measure is adopted by and then is people rejected court on the procedural ground that it did not comply constitutional only subject, interest is not public well served. The fact that an initiative on its face contains more than one makes it ripe for judicial determination. J., joins this concurrence.

Gerrard, Controlled Environments Construction, Inc., Key a California corporation, appellant, Industrial Refrigeration Co., California corporation, defendant, a Delaware Hill-Phoenix, Inc., defendant corporation, Refrigeration third-party plaintiff, Equipment third-party appellees. Specialists, defendant,

670 N.W.2d 771 Filed October 2003. No. S-02-708.

Case Details

Case Name: Loontjer v. Robinson

Court Name: Nebraska Supreme Court

Date Published: Oct 24, 2003

Citation: 670 N.W.2d 301

Docket Number: S-02-1030

Court Abbreviation: Neb.