Duggan v. Beermann

• Citation: 249 Neb. 411,544 N.W.2d 68
• Decision Date: 23 February 1996
• Docket Number: No. S-94-1112,S-94-1112
• Parties: Tim DUGGAN et al., Appellants, v. Allen J. BEERMANN, Secretary of State, et al., Appellees.
• Court: Supreme Court of Nebraska

Page 68

544 N.W.2d 68

249 Neb. 411

Tim DUGGAN et al., Appellants, v. Allen J. BEERMANN, Secretary of State, et al., Appellees.

No. S-94-1112.

Supreme Court of Nebraska.

Feb. 23, 1996.

Syllabus by the Court

1. Equity: Appeal and Error. In an equitable proceeding, an appellate court makes an independent determination of both the facts and the applicable law.

2. Constitutional Law. A constitution represents the supreme written will of the people regarding the framework for their government.

3. Constitutional Law: Initiative and Referendum. The people have the power to amend the Constitution of Nebraska pursuant to Neb. Const. art. III, § 1.

4. Constitutional Law: Initiative and Referendum: Appeal and Error. In a case involving the people's amendment to their Constitution, this court makes no attempt to judge the wisdom or the desirability in enacting such amendments.

5. Constitutional Law: Initiative and Referendum. In adopting the Nebraska Constitution, the people have imposed upon themselves limitations on their ability to amend this fundamental law.

6. Initiative and Referendum: Pleadings: Injunction: Declaratory Judgments. A prayer for injunctive relief under Neb.Rev.Stat. § 32-706 (Reissue 1993) can properly be joined with a prayer for declaratory relief.

7. Actions. There may be several rights of action arising out of a cause of action; a single cause of action may give rise to more than one theory upon which recovery may be had.

8. Declaratory Judgments: Pleadings: Justiciable Issues. A court should refuse a declaratory judgment unless the pleadings present a justiciable controversy which is ripe for judicial determination.

9. Moot Question: Appeal and Error. 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 future guidance of public officials, and the likelihood of future recurrence of the same or a similar problem.

10. Constitutional Law: Public Officers and Employees. State-imposed term limits upon congressional offices violate the Constitution of the United States.

11. Constitutional Law: Statutes: Legislature: Intent. This court has identified several factors for consideration in determining whether an unconstitutional provision is severable from the remainder of a statute: (1) whether, absent the invalid portion, a workable plan remains; (2) whether the valid portions are independently enforceable; (3) whether the invalid portion was such an inducement to the valid parts that the valid parts would not have passed without the invalid part; (4) whether severance will do violence to the intent of the Legislature; and (5) whether a declaration of separability indicating that the Legislature would have enacted the bill absent the invalid portion is included in the act.

12. Constitutional Law: Initiative and Referendum: Intent. There is no meaningful way to determine the intent which motivates voters to sign a petition for the submission of an enactment, nor is there any real way to determine the intent of those voters who vote for the adoption of an enactment.

13. Constitutional Law: Judicial Construction. The Nebraska Supreme Court may use historical or operative facts in connection with the adoption of a constitutional amendment in order to interpret the meaning of the language of the Nebraska Constitution.

14. Initiative and Referendum: Statutes. The Secretary of State must review a petition for a proposed initiative measure to determine whether the petition satisfies statutory prescriptions regarding the form of an initiative measure.

15. Initiative and Referendum. The Secretary of State's duties in the review of initiative petitions are ministerial in nature.

16. Initiative and Referendum. The Secretary of State cannot pass on the merits of the initiative measure and can reject the measure only if it is facially invalid or unconstitutional.

17. Constitutional Law: Statutes. The Revisor of Statutes has authority, in preparing supplements to and reissued or replacement volumes of the Revised Statutes, to renumber and rearrange sections, but the Revisor cannot change the substantive meaning of any adopted constitutional amendment.

Appeal from the District Court for Lancaster County; Paul D. Merritt, Jr., Judge. Reversed.

Alan E. Peterson and Terry R. Wittler, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, and Mark D. McGuire and Scott J. Norby, of McGuire & Norby, Lincoln, for appellants.

Don Stenberg, Attorney General, L. Steven Grasz, and L. Jay. Bartel, Lincoln, for appellee Allen J. Beermann.

Todd E. Frazier, of Frazier & Garrett, Omaha, for appellees Guy Curtis and Nebraskans for Term Limits.

WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, CONNOLLY, and GERRARD, JJ., and McGILL, District Judge.

PER CURIAM.

This is an appeal from an order of the district court for Lancaster County denying injunctive and declaratory relief. In the

lower court, appellants sought a declaration that a term limits initiative petition was fatally invalid and defective and sought to enjoin the Secretary of State from placing the measure on the official ballot for the November 8, 1994, general election. The initiative petition (Measure # 408) proposed to amend the Constitution of the State of Nebraska by imposing term limits on a variety of federal and state elective offices. The district court denied all relief. The district court did not address [249 Neb. 413] the constitutionality of the measure, since the measure had not been adopted and an opinion on its constitutionality would be advisory. Measure # 408 was placed on the ballot, and the voters of Nebraska approved the proposed amendments. After the election, appellants filed a motion for a new trial, seeking a declaration that the amendments were unconstitutional. Appellants' motion for a new trial was denied. In this appeal, appellants continue to assert that the term limits initiative measure was defective and that the resulting amendments are unconstitutional. Pursuant to U.S. Term Limits, Inc. v. Thornton, --- U.S. ----, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995), the amendment which imposes term limits upon members of the House of Representatives and the U.S. Senate is unconstitutional. While declining to pass on the constitutionality of the amendments relating to state term limits, we hold that the remaining amendments resulting from Measure # 408 must also be struck down because the unconstitutional amendment was so interwoven with the other amendments that the entire measure must now fail. Accordingly, we reverse the judgment of the district court.

BACKGROUND

On May 13, 1994, this court held that a term limits proposal (Measure # 407) had been improperly submitted to the voters in November 1992. Duggan v. Beermann, 245 Neb. 907, 515 N.W.2d 788 (1994) (Duggan v. Beermann I ). Duggan v. Beermann I held that the amendments contained in Measure # 407 had improperly been placed on the ballot and were therefore void, despite the fact that they had received the approval of Nebraska voters.

Supporters of Measure # 407 decided to submit a second term limits proposal, Measure # 408, to Nebraska voters. Guy Curtis, who had been involved with and had supported Measure # 407, drafted the "new" initiative petition. Curtis substantially followed the form and substance of the Measure # 407 petition, although he added provisions which would impose term limits on certain local officials, including school boards and county attorneys.

On May 24, 1994, Curtis filed a sample of the term limits initiative petition with Secretary of State Allen J. Beermann. Neb.Rev.Stat. § 32-704(2) (Reissue 1993) requires a sponsor of an initiative measure to file a "copy of the form to be used" with the Secretary of State prior to obtaining any signatures to the petition. The sample petition was prepared on standard letter-size paper. It was not a final copy of the form which was ultimately circulated, as required by statute.

Parenthetically, we note that chapter 32, article 7, of the Nebraska Revised Statutes has been amended and recodified at chapter 32, article 14. However, such revisions were effective January 1, 1995, and are not pertinent to the initiative measure before us.

In May 1994, Curtis sought the assistance and cooperation of U.S. Term Limits, a national term limits proponent. Upon the advice of U.S. Term Limits, Curtis filed an amended petition on May 27 in which the provisions relating to local school boards and county officials were deleted. The amended petition submitted was again a sample draft, rather than a final form.

After the sample amended term limits initiative petition was filed, the actual petition was prepared. The text of the actual petition is identical to that in the sample amended petition, but the final petition differs from the sample form in its use of type size, boldface, and paper size. The actual petition was two-sided and printed on 11 by 17-inch paper. The front side of the petition stated the petition's objectives and the statutory prohibitions regarding who may sign and circulate petitions, and provided 20 lines for the supporters' signatures. The proposed Neb.Rev.Stat. § 32-703 (Reissue 1993) provides that each initiative petition shall contain a "concise statement in large type of the objects sought to be secured by submitting the measure to the voters." The object statement for Measure # 408 provides:

constitutional amendments were printed on the back side of the petition.

THE OBJECTIVE OF THIS INITIATIVE PETITION IS: To amend the constitution of Nebraska to provide for a maximum number of consecutive terms to which the Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Attorney General, elected members of the Public Service Commission, elected members of the Board of Regents, elected members...