STATE OF NEBRASKA EX REL. RONALD SHEPHERD, APPELLEE, V. NEBRASKA EQUAL OPPORTUNITY COMMISSION ET AL., APPELLANTS. STATE OF NEBRASKA EX REL. RANDALL CHAPP, APPELLEE, V. NEBRASKA EQUAL OPPORTUNITY COMMISSION ET AL., APPELLANTS.
Nos. S-95-984, S-95-985
Supreme Court of Nebraska
January 17, 1997
557 N.W.2d 684 | 251 Neb. 517
However,
CAPORALE, J., joins in this concurrence.
Dalton W. Tietjen, of Tietjen, Simon & Boyle, for appellees.
WHITE, C.J., CAPORALE, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ., and REAGAN, D.J.
CONNOLLY, J.
This consolidated appeal from the district court for Lancaster County arises out of the district court‘s issuance of peremptory writs of mandamus that ordered the Nebraska Equal Opportunity Commission (NEOC) to return Ronald Shepherd and Randall Chapp (appellees) to their previously held positions of employment with the NEOC. In this appeal, we are asked to determine the constitutionality of
I. BACKGROUND
In March 1995, the appellees were fired from their employment as full-time investigators with the NEOC pursuant to disciplinary charges brought against them. As a result, they filed charges with the Public Counsel (Ombudsman), claiming that they had been wrongfully fired by the NEOC in retaliation for having cooperated with a legislative investigation of possible NEOC wrongdoing. The appellees assert that their cooperation in the investigation constituted protected whistleblower activity under the State Government Effectiveness Act (Whistleblower Act),
The Whistleblower Act was enacted by the Legislature in order to “encourage public officials and employees to disclose information concerning possible violations of law and fiscal waste or mismanagement in state government to elected state officials or the [Ombudsman] and to prohibit reprisals for such disclosures by state employees.”
As required by
The NEOC refused to comply with these orders. As a result, the appellees commenced this action in the district court, which issued peremptory writs of mandamus ordering the NEOC to
II. ASSIGNMENTS OF ERROR
Summarized and rephrased, the NEOC alleges the district court erred in entering peremptory writs of mandamus because
We note that
III. STANDARD OF REVIEW
The party claiming a statute is unconstitutional has the burden to show and clearly demonstrate that the questioned statute is unconstitutional. Callan v. Balka, 248 Neb. 469, 536 N.W.2d 47 (1995).
A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. Chrysler Motors Corp. v. Lee Janssen Motor Co., 248 Neb. 322, 534 N.W.2d 309 (1995); Pick v. Nelson, 247 Neb. 487, 528 N.W.2d 309 (1995).
Even when a law is constitutionally suspect, a court will attempt to interpret it in a manner consistent with the Constitution. CenTra, Inc. v. Chandler Ins. Co., 248 Neb. 844, 540 N.W.2d 318 (1995); State ex rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994).
IV. ANALYSIS
1. WHETHER CASE IS MOOT
As a result of a grievance procedure contained in the state‘s union contract with the Nebraska Association of Public
A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of litigation. Duggan v. Beermann, 245 Neb. 907, 515 N.W.2d 788 (1994). The public interest exception to the rule precluding consideration of issues on appeal due to mootness requires a consideration of the public or private nature of the question presented, desirability of an authoritative adjudication for further guidance of public officials, and the likelihood of future recurrence of the same or a similar problem. Bamford v. Upper Republican Nat. Resources Dist., 245 Neb. 299, 512 N.W.2d 642 (1994).
In the instant appeal, the State continues to have a legally cognizable interest in the constitutionality of the Whistleblower Act despite the arbitration order. Furthermore, there is a public desire for an authoritative adjudication to guide public officials (Ombudsman, personnel board) in the performance of their duties. Moreover, there is a likelihood that this same constitutional problem will reoccur in the future yet evade review if we find the issue to be moot. As a result, we will proceed with the merits of this appeal.
2. WHETHER CONSTITUTIONALITY OF STATUTES WAS PROPERLY RAISED
Before reaching the NEOC‘s separation of powers argument, we must first address the appellees’ claim that the NEOC did not properly raise the constitutional issue at the district court level. Except in the “most unusual cases,” for a question of constitutionality to be considered on appeal, it must have been properly raised in the trial court. If not so raised, it will be considered to have been waived. See, State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994); In re Estate of Snyder, 217 Neb. 356, 348 N.W.2d 136 (1984).
The NEOC does not argue that it raised the separation of powers issue in the district court. However, the NEOC argues that it did not have an opportunity to raise the issue in the dis-
Two types of writs of mandamus are recognized and defined: (1) alternative writs and (2) peremptory writs.
In the instant case, the district court, as permitted by statute, issued the peremptory writs without first issuing alternative writs. Furthermore, the court issued the peremptory writs in an ex parte fashion without providing the NEOC notice or an opportunity to show cause why the writs should not be issued. Moreover, no other pleadings or written allegations are allowed by law. See
We determine that a defendant must be given an opportunity to raise nonfrivolous, constitutional challenges to the issuance of peremptory writs of mandamus. Our standard when reviewing the alleged unconstitutionality of a statute is that it presents a question of law that must be determined independently from the conclusion reached by the trial court. Jones v. State, 248 Neb. 158, 532 N.W.2d 636 (1995). As a result, we conclude that this case need not be remanded to the district court, because it is one of those “most unusual cases” in which a question of constitutionality has not been waived and will be considered on
3. WHETHER STATUTES ARE VIOLATIVE OF SEPARATION OF POWERS CLAUSE OF NEBRASKA CONSTITUTION
(a) Overview of Whistleblower Act
The NEOC asserts that
Sections
Upon receiving the [Ombudsman‘s] finding that there is reason to believe a violation of
section 81-2705 has occurred or is about to occur, the State Personnel Board . . . shall, without further proceedings, stay or reverse the personnel action until a hearing can be held to determineif there is reason to believe that a violation of section 81-2705 is contemplated or has occurred. Such board . . . shall, at the earliest possible date, hold a hearing to determine whether a violation has occurred or is about to occur. (Emphasis supplied.)
(b) Whether Removal of Executive Employees Is Duty and Prerogative of Executive Branch of State Government
The NEOC asserts that
The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted. (Emphasis supplied.)
In other words, the Nebraska Constitution prohibits one branch of government from encroaching on the duties and prerogatives of the others or from improperly delegating its own duties and prerogatives. Calabro v. City of Omaha, 247 Neb. 955, 531 N.W.2d 541 (1995); Clemens v. Harvey, 247 Neb. 77, 525 N.W.2d 185 (1994). This aspect of the separation of powers clause serves as the beam from which our system of checks and balances is suspended. State ex rel. Spire v. Conway, 238 Neb. 766, 472 N.W.2d 403 (1991).
The heads of all executive departments established by law, other than those to be elected as provided herein, shall be appointed by the Governor, with the consent of a majority of all members elected to the Legislature, but officers so appointed may be removed by the Governor. Subject to the provisions of this Constitution, the heads of the various executive or civil departments shall have power to appoint and remove all subordinate employees in their respective departments.
The Governor shall have power to remove, for cause and after a public hearing, any person whom he may appoint for a term except officers provided for in Article V of the Constitution . . . . The Governor shall have power to remove any other person whom he appoints at any time and for any reason.
In State ex rel. Beck v. Young, 154 Neb. 588, 591, 48 N.W.2d 677, 679 (1951), this court held:
Except as limited by the Constitution itself the supreme executive power is to be exercised by the Governor and, under the division of powers devised by the Constitution, neither the Legislature nor the courts may exercise the powers thus conferred upon the executive branch. The power to remove an officer or employee in the executive branch of the government is an executive function. (Emphasis supplied.)
The Beck court then went on to restate that “[t]he power of appointment and removal is in the Governor . . . and the legislative or judicial branches may not properly trench upon the executive power thus granted.” Id. at 594, 48 N.W.2d at 681 (citing Myers v. United States, 272 U.S. 52, 47 S. Ct. 21, 71 L. Ed. 160 (1926)). Thus, it is clear that the power to remove an employee in the executive branch of state government is an executive duty and prerogative.
(c) Whether Ombudsman Is Officer of Legislative Branch of State Government
The NEOC asserts that
The Ombudsman is nominated and appointed, his or her salary is set, and he or she may be removed, by the Legislature. See
(d) Whether “Shall” as Used in § 81-2707(1) Should Be Construed as Mandatory or Discretionary
The NEOC argues that encroachment occurs because
(i) General Rule That “Shall” Considered Mandatory
[u]nless such construction would be inconsistent with the manifest intent of the Legislature, rules for construction of the statutes of Nebraska hereafter enacted shall be as follows:
(1) When the word may appears, permissive or discretionary action is presumed. When the word shall appears, mandatory or ministerial action is presumed.
See, also, Bank of Gering v. Glover, 192 Neb. 575, 223 N.W.2d 56 (1974); Anderson v. Carlson, 171 Neb. 741, 107 N.W.2d 535 (1961).
In other words, the general rule is that in the construction of statutes, the word “shall” is considered mandatory and inconsistent with the idea of discretion. Payne v. Nebraska Dept. of Corr. Servs., 249 Neb. 150, 542 N.W.2d 694 (1996). It is particularly so considered when the statute is addressed to public officials. State ex rel. Smith v. Nebraska Liquor Control Commission, 152 Neb. 676, 42 N.W.2d 297 (1950); Trobough v. State, 120 Neb. 453, 233 N.W. 452 (1930).
While the word “shall” may render a particular provision of a statute as mandatory in character, when the spirit and purpose of the legislation require that the word “shall” be construed as permissive rather than mandatory, such will be done. State ex rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994).
It is clear that the spirit and purpose of the Whistleblower Act were to ensure that an allegedly aggrieved state employee could bring his or her complaint to the Ombudsman and, if the Ombudsman finds reasonable grounds to believe the complaint has merit, that the employee “shall” receive an immediate stay or reversal from the personnel action taken against him or her and a prompt evidentiary hearing. However, if the State Personnel Board is free to disregard the Ombudsman‘s reasonable-grounds finding and to not order an immediate stay or reversal and an evidentiary hearing, then the legislative intent has been undermined.
A further indication that the Legislature intended the word “shall” to be mandatory is the additional language in
Upon receiving the [Ombudsman‘s] finding that there is reason to believe a violation of
section 81-2705 has occurred or is about to occur, the State Personnel Board shall, without further proceedings, stay or reverse the personnel action until a hearing can be held to determine if there is reason to believe that a violation of section 81-2705 is contemplated or has occurred. (Emphasis supplied.)
In other words, the statute proscribes the State Personnel Board from conducting further proceedings before it issues the order of stay or reversal. If the word “shall” was merely intended to be a recommendation to the State Personnel Board, then the board would be unable to make a rational, independent decision, since it is proscribed from hearing argument and receiving evidence before making its decision. Thus, by proscribing further proceedings, the Legislature has made clear its intent to require the State Personnel Board to issue orders of
Furthermore, the word “shall” appears 36 times in the Whistleblower Act. A word or phrase repeated in a statute will bear the same meaning throughout the statute, unless a different intention appears. Anderson v. Carlson, supra. If the word “shall” in
Thus, upon reviewing the statutory language and context of the Whistleblower Act, we are not persuaded that the spirit and purpose of the legislation require us to depart from the general rule and construe the word “shall” in
(iii) Case Distinguishable From Those in Which This Court Has Construed “Shall” as Permissive Rather Than Mandatory
Only three times has this court construed the word “shall” to be permissive in order to save a statute from constitutional infirmity. In Nebraska Loan & Building Ass‘n v. Perkins, 61 Neb. 254, 85 N.W. 67 (1901), this court construed as permissive a portion of a legislative act of 1873 which stated in pertinent part that although the dues, fines, premiums, and other charges paid by members of a building and loan association may aggregate a greater amount than the legal rate of interest on loans made to them, such payments shall not be construed to make such transactions usurious. The court reasoned:
It is not within the province of the legislature to interpret the law, or to apply it to particular cases, that being peculiarly the duty of the courts. But we do not think that the legislature, in reciting that the contracts of these associations should not be construed to be usurious, intended to usurp judicial functions. While the wording of the statute would bear the construction that it was a direction to the courts, yet the substance of the legislation must be
regarded, rather than the form, and for that reason we are of opinion that it was rather the intention of the legislature to establish a rule of interest relative to this particular class of contracts; that the act is declaratory, the intent thereby being to relieve the contracts of these institutions from the operation of the usury laws, rather than an attempt to arrogate to the legislature judicial functions. Id. at 261, 85 N.W. at 69.
In State, ex rel. Sorensen, v. State Bank of Minatare, 123 Neb. 109, 242 N.W. 278 (1932), we held that a legislative act providing that the secretary of the department of trade and commerce shall be the sole receiver of all insolvent state banks amounts to no more, in a judicial proceeding properly pending in a court of equity for the liquidation of a bank, than a legislative recommendation to the judiciary to appoint him, as otherwise the enactment would be an unconstitutional encroachment on judicial power. The court reasoned:
French legislators once imprisoned judges for failure to comply with the legislative will. Montesquieu suggested a government with legislative, executive and judicial departments, each independent of the other. The framers of the American Constitution and the people of Nebraska adopted that plan. It has been regarded by statesmen and philosophers as an outstanding advancement in the science of government. Throughout the judicial history of the present system the courts have scrupulously respected the prerogatives of the legislative and executive departments and extended to them the comity due to governmental divisions of equal rank, but courtesy does not extend to the surrendering of judicial power. It is an imperative duty of the judicial department of government to protect its jurisdiction at the boundaries of power fixed by the Constitution. (Emphasis supplied.) Id. at 114, 242 N.W. at 280-81.
In State ex rel. Grape v. Zach, 247 Neb. 29, 37, 524 N.W.2d 788, 797 (1994), this court was faced with construing a statute which read, ” ‘If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed
The court held that the word “shall” was directory, stating that “if the portions of [the statutes] at issue merely recommend that a judge engage in certain communications rather than command that the judge do so, that is, if the provisions are directory rather than mandatory, they will survive constitutional scrutiny.” Id. at 42, 524 N.W.2d at 799-800. The court reasoned:
The due process and ethical problems which arise when judges turn into inquisitors by undertaking to personally investigate the facts in matters they must adjudicate illustrate one of the reasons the distribution of powers clause contained in
Neb. Const. art. II, § 1 , prohibits the legislative department of government from telling the judicial department of government how to conduct judicial business. (Emphasis supplied.) Id. at 41-42, 524 N.W.2d at 799 (citing State, ex rel. Sorensen, v. State Bank of Minatare, supra).
Thus, this court has construed the word “shall” to be directory, in order to save the constitutionality of a statute only in cases where the Legislature has attempted to encroach upon the judiciary‘s duties and prerogatives by telling the judiciary how to conduct its judicial business.
In Anderson v. Carlson, 171 Neb. 741, 107 N.W.2d 535 (1961), this court held that a statute permitting private taxation without affording property owners the opportunity to be heard by a competent tribunal upon the question of whether the property has been arbitrarily or unjustly included within the boundaries of the proposed district is an unconstitutional delegation of legislative power. In that case the court stated:
In order to suggest a question on construction, appellants urge that the word “shall” be interpreted as permissive in order to uphold a legislative act. With this we do not agree. It is not the function of the courts to legislate. There may be occasions where it is apparent the word “shall” may have been used by inadvertence, and the rest of the act so indicates, in which case appellants’ argument would have merit. However, that is not the case here . . . .
. . . To so hold would be judicial legislation in which we do not intend to indulge. Id. at 745-46, 107 N.W.2d at 538-39.
The instant case is distinguishable from Nebraska Loan & Building Ass‘n v. Perkins, 61 Neb. 254, 85 N.W. 67 (1901); State, ex rel. Sorensen, v. State Bank of Minatare, 123 Neb. 109, 242 N.W. 278 (1932); and State ex rel. Grape v. Zach, supra, in that in the instant case the Legislature‘s encroachment is upon the executive branch, not the judiciary. The judiciary, not the executive branch, serves as a check upon the constitutionality of legislative enactments. As such, the judiciary is permitted to construe legislative enactments in a manner that eliminates legislative attempts to usurp judicial power. As stated, “It is an imperative duty of the judicial department of government to protect its jurisdiction at the boundaries of power fixed by the Constitution.” State, ex rel. Sorensen, v. State Bank of Minatare, 123 Neb. at 114, 242 N.W. at 281. See, also, State ex rel. Grape v. Zach, supra.
For the foregoing reasons, we refuse to give the word “shall,” as it appears in
(e) Whether § 81-2707(1) Calls for Legislative Branch to Encroach Upon Executive Branch‘s Duties and Prerogatives
The appellees assert that
The appellees further assert that even if the word “shall” in
The appellees are correct in their assertion that under the Whistleblower Act the ultimate authority to determine whether an executive employee was fired in violation of the Act is vested in the State Personnel Board. However, we determine that
“In accordance with constitutional provisions separating the departments of government, the legislature cannot interfere with, or exercise any powers properly belonging to, the executive department.” (Emphasis supplied.) 16 C.J.S. Constitutional Law § 134 at 434 (1984). See, also, State ex rel. Meyer v. State Board of Equalization & Assessment, 185 Neb. 490, 176 N.W.2d 920 (1970); State ex rel. Beck v. Young, supra. “Thus, the legislature cannot relieve or preclude any executive officer from the performance of a duty enjoined on him by the constitution . . . .” 16 C.J.S., supra, at 434. “The legislature can neither enforce the laws which it has the power to make, nor, in the usual instance, appoint the agents charged with the duty of such enforcement.” 16 Am. Jur. 2d Constitutional Law § 323 at 858 (1979). “The two departments should be kept as distinct and independent as possible.” Id. at 857.
In short,
V. CONCLUSION
We conclude that
REVERSED.
FAHRNBRUCH, J., not participating.
WRIGHT, J., dissenting.
I dissent because I cannot conclude that
The legislative power is set forth in
The Legislature enacted the State Government Effectiveness Act,
If the Public Counsel finds reasonable grounds to believe a violation has occurred, a report is forwarded to the personnel board (executive branch), which is then required to hold a hearing to determine whether there has been a statutory violation. Until the personnel board carries out the hearing, however, it is required to stay the action. The personnel board‘s determination is subject to review by the district court (judicial branch). See
In my opinion, the required stay is basic procedural due process, which the Legislature may establish in order to effectively carry out a law that was within the Legislature‘s power to enact to protect the public welfare.
It is obvious that the Nebraska Constitution, like the federal Constitution, ” ‘contemplates that practice will integrate the dispersed powers into a workable government . . . .’ ” Loving, 116 S. Ct. at 1743 (quoting Youngstown Co. v. Sawyer, 343 U.S. 579, 635, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) (Jackson, J., concurring)). See, also, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995) (state court decisions in period immediately after ratification of federal Constitution drew little distinction between federal and state Constitutions in their understanding of separation of powers). Separation of powers ” ’ “d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul [sic] over the acts of each other.” ’ ” Loving, 116 S. Ct. at 1743 (quoting Mistretta v. United States, 488 U.S. 361, 380-81, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989)). A ” ‘hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.’ ” Loving, 116 S. Ct. at 1743 (quoting Buckley v. Valeo, 424 U.S. 1, 121, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)).
LANPHIER, J., joins in this dissent.