State Ex Rel. Brant v. Beermann

assign- apparent plaintiff, the last it in favor no merit. ment has judgment correct and court was of the district

is affirmed. Affirmed. C.J., in the result. concurs

Krivosha, Clayton al., Brant et ex rel. State J. Secretary Beermann, relators, v. Allen respondent. Nebraska, State 350 N.W.2d Filed June 1984. No. 83-834. Walsh, Walentine, Miles, Ful- J. Walsh of

Thomas Stephen Gehring lenkamp O’Toole, E. & Wright, Oldfather, Williams, & for re- Cline, Johnson Timothy and, brief, lators, F. Shaw. on Attorney Terry Douglas, General, and L. R. Paul respondent. Schaaf, for Boslaugh, White, Krivosha, C.J., Caporale, D.J., Re- Colwell, Grant, JJ.,

Shanahan, tired. Curiam.

Per original court, Relators, filed leave of this an seeking requiring of mandamus a writ action Secretary of State of the State Nebraska file and that relators’ proposed petition, placed law, aas general election in ballot November 1984.

Anticipating filing their initi- petition, equipped pro- ative with a posed sought of State advice Attorney Nebraska, from General of the State of is, whether the that to file the of State was copy petition sought of the relators’ to be signatures registered circulated for voters. opinion 3, 1983,

In a written dated June the Attor- ney advised the General of State that the process could not be used for the creation conducting advisory of a resolution or for questions votes on public policy. In an additional written August Attorney 25, 1983, General in- formed the of State that there existed “no statutory authority utilizing process for the initiative advisory question’’ [the] to obtain an vote on con- petition. in tained August presented 31, 1983, On relators to the Sec- retary copy petition pursu- of State a of the initiative (Reissue 1978). ant to Neb. Rev. Stat. 32-704 and form peti- tion are as follows:

INITIATIVE PETITION THE OBJECT OF THIS INITIATIVE PETI- TION IS TO STATE THE POSITION OF THE PEOPLE OF NEBRASKA IN FAVOR OF A BI- LATERAL NUCLEAR WEAPONS FREEZE IN- CLUDING OPPOSITION TO DEPLOYMENT NEBRASKA, OF MX MISSILES IN FOL- LOWED BY PROMPT NEGOTIATIONS TO RE- DUCE THE NUMBER OF NUCLEAR WEAP- ONS AND TO CAUSE THE TRANSMISSION OF THAT STATEMENT OF POSITION TO CERTAIN PERSONS AND GROUPS IN THE OF THE GOVERNMENTS UNITED STATES THE SOVIET AND UNION. [sic]

TO THE HONORABLE ALLAN J. BEER- MANN, OF SECRETARY STATE FOR THE STATE OF NEBRASKA: undersigned legal

We, voters of the State of_, County and the Nebraska sign this re- being severally qualified following proposed demand spectfully shall be submitted to the voters of the State rejection their at the approval to be held on the 6th general day election of No- vember, 1984:

BILATERAL NUCLEAR WEAPONS FREEZE INCLUDING DEPLOYING OF MX MISSILES

IN NEBRASKA ACT to for a provide po- FOR AN statement sition of the of the State of Nebraska of a bilateral nuclear weapons favor freeze in- cluding opposition deployment of MX missiles Nebraska followed prompt negotiations of nuclear weapons reduce the number and to for the transmission provide such statement persons groups to certain position Gov- ernment of the United States and the Soviet Union. by people

Be it enacted of the State of Ne- braska. 1. The people

Section of the State of Nebraska following statement hereby adopt position weapons as to a bilateral nuclear freeze including missiles deploying MX Nebraska: Nebraska, of the State of People do hereby oppose deployment of the MX missile in Ne- urge braska that the governments of the States and the United Soviet Union agree to a bilateral halt to the testing, production and fur- ther of all nuclear deployment weapons, mis- delivery systems siles and in a manner that countries; checked and can be verified both urge and further that this bilateral agreement by prompt negotiations be followed to reduce number present of nuclear weapons pos- both sessed countries. shall, 2. The

Section Governor (10) ten date days operative within of this Act, a written communication to the transmit Secretary States, the United of of President of Secretary States, of the United Defense States, United all State of the members Congress and to the Chairman of United States Supreme declaring Soviet the Presidium containing passage of this Act and the State- Policy designated in ment of Section 1 this Act. Upon completion

Section 3. of the trans- desig- mission of the written communication Act, nated in of this this Section Act shall no further force and effect. September Secretary 1, 1983,

On the was of State found petition statutory relators’ without au- thority not be and should filed because the measure proposed petition contained initiative was “advisory By in nature.” his “order” issued on September Secretary 1, 1983, the of State refused to copy file a although of relators’ initiative stamp of State did “RE- on the CEIVED” for identifica- of that document. tion pro- State admits that statutory

posed prescrip- satisfies regarding petition. the form of an tions (Cum. 1982), Supp. §§ Rev. Stat. 32-703 Neb. See (Reissue 1978). 32-703.01, and 32-704 Const, provides part: Ill, 1,§ Neb. art. themselves, however, reserve for the the

power propose laws, amendments reject constitution, and to enact or the same at independent polls, Legislature, power option ap- at own also reserve their prove reject polls any act, item, at the sec- any passed by part Legisla- tion, or act the ture. Const, provides part: Ill, Further, §2, art. Neb. by people power reserved “The first the is the initi- may whereby be enacted and laws constitu- ative people adopted by inde- the amendments tional Legislature.” pendently the peo- provisions foregoing By constitutional reserved the ple power have of Nebraska of the State independent propose enact laws and Legislature Consequently, Legislature. and the concurrently equal in rank as sources are electorate authorizing legislation. the initiative Provisions legis- that the a manner such be construed should people power is effectual. in the reserved lative Marsh, 506, 143 N.W.2d 180 Neb. See, v. Klosterman (1966); Marsh, v. 183 Neb. ex rel. Morris (1968); Bolin, 74 Ariz. Adams v. 521, 162 N.W.2d 247 P.2d (1952). right in the Such reserved 269, people jealously precious is so veto measures guarded cannot the Governor Const, people. III, § Neb. art 4. See initiated precious right to the initiative ‘‘The preserve courts are zealous to which the is one spirit as well as tenable measure fullest to letter.” P.2d Jordan, 330, 332, 32 Cal. 2d McFadden v. (1948). preserve spirit 787, the full ‘‘To of issues to the the submission voters by lengthy litigation bogged down not become should Perry Jordan, v. 34 Cal. 2d . . . .” courts (1949). 47, 49 P.2d concerning legisla- initiative, Provisions people, power should reserved to receive tive policy proposed to effectuate the construction liberal part adopted initiative as the demo- Davis, process. v. 418 S.W.2d 163 See State cratic 1967); Boyer Grady, (Mo. rel. cf. State ex Neb. (1978) (powers the initiative 360, 269 N.W.2d municipalities regarding are to be referendum and liberally permit, restrict, rather than construed prevent, attain, power rather its than the object). (1) presents questions: two Whether case This of State was to file the 32-704; as directed in (2) pro- Whether the measure contained in the petition posed initiative was a law within the mean- Const, ing Ill, 2, of Neb. § art. 32-703.

Concerning peti- the relators’ following principles applicable: tion, the are (1) subject proposed petition Unless the Secretary unconstitutional, its face is invalid or the pass upon validity of State cannot or construc- any proposed proposed petition law, tion of is when the presented filing pursuant for to § 32-704. An ex- ample Secretary determining of State’s validity of an initiative measure would be found in petition proposing statutory an initiative a abolition of a constitutional office.

(2) Secretary pass upon The of State cannot policy merit, wisdom, or of the law to be initiated. (3) Secretary perform of State is promptly imposed all the ministerial law, duties except Secretary may of State determine subject whether has subject semblance of a law or legally whether the appropriate example, for the initiative. For may of State exercise discretion and re- something to file a fuse for which would merely advisory be an vote on an issue or which not would have the characteristics of a law. See Welling, et White al. v. State, 89 Utah (1936). 335, 57 P.2d Generally, seeking advisory a measure an vote nonbinding expression electorate or a the opinion question proper on a is not a for the City See, initiative. Hart, v. 306 Ill. of Litchfield (1940); App. 621, 29 N.E.2d Kimble (1978); Swackhamer, 600, 94 Nev. 584 P.2d 161 City rel. Cleveland Council v. Elections, ex Bd. App. (1974); 299, 2d 318 N.E.2d Ohio Paisner v. Attorney General, 390 Mass. 458 N.E.2d 734 (1983). Supreme Judicial Court of Massachusetts con- question Opinion a similar

sidered the Justices Representatives, 262 Mass. the House (1928). Repre- House of Massachusetts N.E. inquired justices whether a had sentatives “proposed an initiative law” introduced peo- providing ple will of the a vote determine the repeal eighteenth reference to a with meaning amendment, a within the was holding provisions In of the Constitution. 605-06, law, at stated it not that was 440: N.E. at undertaking to frame a definition of

Without sufficiently as used in this Amendment “law” comprehensive to meet all the con- accurate may future, be made to reference ditions jurisdictions given in in other dis- two definitions cussing the and effect statutes. In force of Banana v. United Fruit American Co. Co. U. S. (1909)], 511, [29 347, S. Ct. 53 L. Ed. 826 it by is Mr. Justice Holmes: “Law was said a in of the circumstances which statement brought upon will be bear force men Opinion through Justices, In the courts.” of (1891)], 1076, 629, [33 A. 66 H. occurs N. ‘is not a transient “Law a rule: sudden this: concerning par- superior a to or a from order something permanent, person; but uni- ticular form, and universal ....’” The word “law” general appropri- imports rule conduct with a of by its declared ate means some enforcement sovereign authority possessing power over implies subject; entreaty; it command and not something in kind an it different from inef- possessing expression opinion no sanc- fectual compel observance the views tion to an- text of nounced. accom- pre- panying this initiative does not general merely of conduct. It a rule scribe in- by voters declaration of on a vites a ject sub- people which the over Commonwealth sovereign power. part possess no Amend- ment of Constitution of the United States and repeal of Amendments thereof constitute Fed- every particular eral functions derived in en- tirely from the Constitution of the United States. provisions That instrument transcends all sought by leg- to be enacted authority any islative State. voters several States are excluded the terms of art. 5 of the Constitution of the United States from participation process in the of its amendment. By power that article all over the is vest- exclusively Legislatures ed several 221, [40 States. Hawke v. 253 U. S. Smith, (1920)]. 495, S. Ct. 64 L. Ed. 871 Leser Garnett, [42 U. S. S. 66 L. Ed. Ct. (1922)]. The result the vote as proposed in this lacking would any The proposed wanting law is effective force. essential to constitute its provisions

features law within any permissible conception Superficial appearances meaning that word. cannot clothe with the attributes of law some- thing inoperative. in substance vain and mandate the Secretary the Commonwealth in 2 to the tabulate returns the votes and to % of “transmit ... copies to each senator and repre- congress in sentative this commonwealth” from subsidiary is and incidental to the main purpose law; the proposed it relates to a matter which of standing legal alone no possesses force; it can- something not convert into a law in in- itself effectual. supplied.) (Emphasis spared the should burdensome

Government machinery a vote as straw of election the cost opinions, sentiments, or attitudes on electorate’s lawmaking through public This includes the issues. Legislature or initiative. the proposed petition the initiative hold that the

We nonbinding expres- nothing a more than is relators subject proper opinion public not and a sion of in Nebraska. initiative denied. of mandamus Writ dissenting. J., Shanahan, majority in that the measure re- concludes The petition not law. is a lators’ (see Leymel of v. is rule civil conduct law a A (1930)), App. 694, Johnson, a 288 P. 858 rule 105 Cal. (see prescribed by authority Insurance Co. of action v. Industrial (1922)), Com., P. Colo. prescribed by the rule civil conduct law- a of (see making power in a state Public Service Com- Co., R. Y. Central R. A.D. N. mission (1920)). Regarding the issues before the N.Y.S. pre- case, a is a law rule of conduct this court scribed lawmaking power sovereign. a of Al- proposed petition though does relators’ initiative re- approval a freeze and of bilateral nuclear dis- flect locating Nebraska, approval missiles in MX expres- petition subject of the includes more than weapons. public about nuclear sions proposed days operative date Within law, action, must Governor Nebraska take is, communication to certain send a written offi- to the the U.S. Government and Chairman of cials Supreme Presidium Soviet. commu- Governor shall contain from Nebraska’s nication Policy” set forth of relators’ “Statement petition proposed If relators’ initiative measure. re- vote, then Nebraska’s favorable ceives Governor obligatory take definite action —the desig- communication transmitted to written governmental duty imposed officials. nated specific consequences as action dictated approved, provide if initiative with the attributes of a distinguish the from expressions nonbinding opinion. mere integral part is an vital Ne- process. Courts should democratic not braska’s weigh propriety the wisdom social or of measure sought in an for such matters are policy politics and thickets —arenas conspicuously courts should absent. which granted. writ mandamus should have been join JJ., in this dissent. Grant, White Department Way, appellant, Oscar F. of Motor Harry Vehicles Nebraska Department Peterson, “Pete” Director appellees. Vehicles, Motor 351N.W.2d 46

Filed 1984. No. June 83-129. appellant. Monahan, James H. for Douglas, Attorney Henry General, Paul L. M. III, appellee. Grether C.J.,

Krivosha, White, Boslaugh, Hastings, JJ. Shanahan, Grant, J.

Boslaugh, plaintiff, appeals Way, from the Oscar F. or- affirming district the order of der court Department suspending of Motor his Vehicles

Case Details

Case Name: State Ex Rel. Brant v. Beermann

Court Name: Nebraska Supreme Court

Date Published: Jun 15, 1984

Citation: 350 N.W.2d 18

Docket Number: 83-834

Court Abbreviation: Neb.