Day v. Nelson, S-92-229

• Decision Date: 02 July 1992
• Docket Number: No. S-92-229,S-92-229
• Citation: 240 Neb. 997,485 N.W.2d 583
• Parties: Connie DAY et al., Appellants, v. E. Benjamin NELSON, Governor of Nebraska, et al., Appellees.
• Court: Nebraska Supreme Court

Page 583

485 N.W.2d 583

240 Neb. 997

Connie DAY et al., Appellants, v. E. Benjamin NELSON, Governor of Nebraska, et al., Appellees.

No. S-92-229.

Supreme Court of Nebraska.

July 2, 1992.

Syllabus by the Court

1. Constitutional Law. It is a fundamental principle of constitutional interpretation that each and every clause within a constitution has been inserted for a useful purpose.

2. Constitutional Law: Legislature: Governmental Subdivisions: Counties: Boundaries. When the population of a county is such that it can legally constitute a legislative district and it is practicable to do so, the Legislature must establish a district which follows that county's boundaries. Neb. Const. art. III, § 5.

3. Constitutional Law: Legislature: Governmental Subdivisions: Counties: Boundaries. When only two counties in the state possess populations such that they can each legally constitute a legislative district and reapportionment plans are offered in the Legislature which leave those counties intact as legislative districts, it is "practicable" to follow the boundaries of those counties in reapportioning the state. Neb. Const. art. III, § 5.

Robert F. Bartle and K. Kristen Newcomb, of Healey & Wieland, Lincoln, and John M. Gerrard, of Gerrard, Stratton & Mapes, P.C., Norfolk, for appellants.

Don Stenberg, Atty. Gen., Charles E. Lowe, and Dale A. Comer, Lincoln, for appellees.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

PER CURIAM.

The plaintiffs-appellants, Connie Day, John Day, Maynard Ohl, James Scheer, and Roger Shaffer, citizens of Nebraska residing in Madison County, initiated this action in the district court for Lancaster County. In their petition, the plaintiffs challenge the constitutionality of 1991 Neb.Laws, L.B. 614, which reapportions the state's legislative districts in light of the 1990 federal census. The plaintiffs allege that L.B. 614, insofar as it abolishes Madison County as a unitary district and instead divides the county between two preexisting districts, violates Neb. Const. art. III, § 5, and art. I, §§ 1 and 3, as well as the 14th Amendment to the U.S. Constitution. The plaintiffs prayed for a declaratory judgment determining that L.B. 614 is unconstitutional and permanently enjoining defendants, Governor E. Benjamin Nelson, Secretary of State Allen J. Beermann, and the State of Nebraska, from enforcing the provisions of L.B. 614. The district court, determining that L.B. 614 was not constitutionally deficient, dismissed the plaintiffs' petition. This appeal followed.

An action to declare a statute unconstitutional "is more akin to relief through an equity action than relief through a law action." State v. Nebraska Assn. of Pub. Employees, 239 Neb. 653, 657, 477 N.W.2d 577, 581 (1991). On appeal from an equity action, this court tries factual questions de novo on the record and, as to both questions of fact and of law, is obligated to reach a conclusion independent from the conclusion reached by the trial court. Id.

Article III, § 5, of the Nebraska Constitution requires the Legislature to redistrict the state after each federal decennial census. The 1990 federal census declared the population of the state to be 1,578,385, which we judicially notice is slightly less than after the 1980 census. Given that there are 49 legislative districts, the optimum number of persons in each legislative district is 32,212 (1,578,385 divided by 49).

Early in the process, the Committee on Government, Military, and Veterans' Affairs determined that it would apportion all districts such that they did not deviate more than 2 percent from the ideal population figure. In other words, each district would contain between 31,568 and 32,856 persons. This population range appears to satisfy Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (one person, one vote rule), and will not be considered further. Only two Nebraska counties, Lincoln and Madison, possess populations falling within the range established by the committee.

In the decade since the last census, 83 of the state's 93 counties did not experience a population increase. Of the 10 counties showing a population increase, the largest increases occurred in the state's most populous areas--Douglas, Lancaster, and Sarpy Counties. Madison County was also one of the 10 counties enjoying a population increase during the preceding decade. The population shift to the state's urban centers impressed upon the committee, as well as upon the entire Legislature, the need to create two additional legislative seats in the Douglas, Lancaster, and Sarpy County areas. Correspondingly, two outstate districts would have to be eliminated, and their territory and populace assigned to other districts destined to survive.

According to the L.B. 614 apportionment, Lincoln County remains as Legislative District 42. However, District 21, the district formerly composed of Madison County, is moved to the Douglas, Saunders, and Lancaster County area and the...