Duggan v. Beermann, S-92-907

• Decision Date: 13 May 1994
• Docket Number: No. S-92-907,S-92-907
• Citation: 245 Neb. 907,515 N.W.2d 788
• Parties: Timothy DUGGAN, Appellant, v. Allen J. BEERMANN, Secretary of State, and Nebraskans for Term Limits, a Petition Sponsor, Appellees.
• Court: Nebraska Supreme Court

Page 788

515 N.W.2d 788

245 Neb. 907

Timothy DUGGAN, Appellant, v. Allen J. BEERMANN, Secretary of State, and Nebraskans for Term Limits, a Petition Sponsor, Appellees.

No. S-92-907.

Supreme Court of Nebraska.

May 13, 1994.

Syllabus by the Court

1. Equity: Appeal and Error. In equity actions, an appellate court reviews the factual findings de novo on the record and reaches a conclusion independent of the findings of the trial court.

2. Appeal and Error. An appellate court has an obligation to reach its own independent conclusions as to questions of law.

3. Moot Question. 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.

4. Moot Question. As a general rule, a moot case is subject to summary dismissal.

5. Injunction. Equity will not issue an injunction when the act complained of has been committed and the injury has been done.

6. Constitutional Law. The Nebraska Constitution may be amended by implication only where the language adopted by the voters conflicts with existing constitutional provisions.

7. Constitutional Law. The Nebraska Constitution, as amended, must be read as a whole.

8. Constitutional Law. A constitutional amendment becomes an integral part of the instrument and must be construed and harmonized, if possible, with all other provisions so as to give effect to every section and clause as well as to the whole instrument.

9. Constitutional Law. A clause in a constitutional amendment will prevail over a provision in the original instrument inconsistent with the amendment only when they relate to the same subject, are adopted for the same purpose, and cannot be enforced without substantial conflict.

10. Constitutional Law: Initiative and Referendum: Voting. Neb. Const. art. III, § 2, requires that a petition for the amendment of the Constitution be signed by 10 percent of the registered voters.

11. Appeal and Error. A case is not authority for any point not necessary to be passed on to decide the case or not specifically raised as an issue addressed by the court.

12. Constitutional Law: Voting. Neb. Const. art. III, § 2, which refers to registered voters, repeals the reference in Neb. Const. art. III, § 4, to those voting in the preceding gubernatorial election.

13. Constitutional Law: Initiative and Referendum: Voting. The number of signatures required for placement of an initiative petition on the ballot by the Nebraska Constitution is equal to 10 percent of the number of registered voters on the date the signatures are to be turned in.

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

15. Constitutional Law. Substantial compliance with the Nebraska Constitution's procedural limitations is required to amend the Constitution although the people have plainly expressed their will that the Constitution be amended.

Alan E. Peterson and Terry R. Wittler of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellant.

Don Stenberg, Atty. Gen., L. Jay Bartel, and Charles E. Lowe, Lincoln, for appellee Beermann.

William E. Morrow, Jr. of Erickson & Sederstrom, Omaha, and John G. Kester, Terrence O'Donnell, and Dennis M. Black, Omaha, of Williams & Connolly, Washington, DC, for appellee Nebraskans for Term Limits.

BOSLAUGH, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and SIEVERS, C.J., and CONNOLLY and HANNON, JJ.

LANPHIER, Justice.

Timothy Duggan appeals from the ruling of the Lancaster County District Court denying him injunctive and declaratory relief. Duggan sought to enjoin appellee Secretary of State Allen J. Beermann from placing ballot measure No. 407 (Measure # 407), the "term limits initiative," on the November 1992 general election ballot. Duggan also sought to have the measure declared invalid. Duggan contended that the initiative petition, filed with the Secretary of State by appellee Nebraskans for Term Limits, (1) had an insufficient number of signatures; (2) was unconstitutional on its face, adding to the "standing qualifications" for U.S. Representatives and Senators; and (3) contained an invalid object clause. We hold that an insufficient number of signatures were submitted and, accordingly, reverse the judgment of the district court.

BACKGROUND

On January 17, 1992, Nebraskans for Term Limits filed with the Secretary of State the proposed initiative petition. The petition, subsequently approved by the voters, sought to amend the Nebraska Constitution to limit various state officials to a maximum number of consecutive terms in a respective office. It also sought to amend the Nebraska Constitution to limit the number of consecutive elections in which certain candidates for the U.S. House of Representatives or the U.S. Senate would be eligible to file for election or have their names placed on a Nebraska official ballot.

On July 3, 1992, Nebraskans for Term Limits filed with the Secretary of State all the pages of the petition bearing signatures. On August 21, the Secretary of State certified the petition as valid and sufficient and ordered that the initiative question be placed on the general election ballot November 3.

On August 31, Duggan, a citizen of and registered voter in the State of Nebraska, initiated this action. The district court rendered its decision dismissing Duggan's action on September 28.

ASSIGNMENTS OF ERROR

Duggan asserts the district court erred in the following respects: (1) in concluding that the number of signatures required for a valid initiative petition to amend the Nebraska Constitution was not to be measured by the number of registered voters as explicitly set forth in Neb. Const. art. III, § 2; (2) in failing to conclude that the criterion previously used based on the number of votes cast for Governor in the preceding election contained in Neb. Const. art. III, § 4, was repealed by implication by the 1988 amendment of Neb. Const. art. III, § 2; (3) in finding the quantity of signatures sufficient; (4) in concluding that the constitutionality of the proposed amendment was not a justiciable issue; (5) in failing to conclude that Measure # 407 is unconstitutional on its face; and (6) in declining to enter a declaratory judgment that the signatures were insufficient under Neb. Const. art. III, § 2, and that the ballot measure is facially unconstitutional.

STANDARD OF REVIEW

In equity actions, an appellate court reviews the factual findings de novo on the record and reaches a conclusion independent of the findings of the trial court. Latenser v. Intercessors of the Lamb, Inc., 245 Neb. 337, 513 N.W.2d 281 (1994). An appellate court has an obligation to reach its own independent conclusions as to questions of law. Goeke v. National Farms, Inc., 245 Neb. 262, 512 N.W.2d 626 (1994).

MOOTNESS

We will address the Secretary of State's assertion that this case should be dismissed as moot, before addressing Duggan's assigned errors.

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. Maack v. School Dist. of Lincoln, 241 Neb. 847, 491 N.W.2d 341 (1992). As a general rule, a moot case is subject to summary dismissal. State ex rel. Bouc v. School Dist. of City of Lincoln, 211 Neb. 731, 320 N.W.2d 472 (1982).

As stated above, Duggan brought this action in Lancaster County District Court to enjoin the Secretary of State from placing the term limits initiative on the November 3, 1992, general election ballot. The district court ruled against Duggan and denied the injunction. The Secretary of State placed the measure on the November 3, 1992, ballot. The measure was voted on and approved.

The Secretary of State argues that this case is moot because an injunction cannot prevent what has already occurred, and the measure has already been placed on the ballot. It is true that equity will not issue an injunction when the act complained of has been committed and the injury has been done. Koenig v. Southeast Community College, 231 Neb. 923, 438 N.W.2d 791 (1989). However, in addition to seeking an injunction against the Secretary of State, Duggan requested a judgment from the district court that the number of signatures submitted was deficient as a matter of law and declaring the measure invalid. Although the injunction is moot, as that remedy can no longer provide Duggan with the relief he requested, the requested declaratory judgment as to the number of signatures is not. Thus, that issue at least is not moot.

NUMBER OF SIGNATURES REQUIRED

Duggan first argues that the number of signatures submitted by Nebraskans for Term Limits and approved by the Secretary of State did not meet the requirements of the Nebraska Constitution for placing an initiative petition on a ballot. Duggan submits that since the number was insufficient, the district court should have granted his injunction and should have declared the measure invalid.

Duggan does not contest the quality or number of signatures submitted, but disputes the number legally required. Duggan submits Neb. Const. art. III, § 2, in pertinent part, states:

that Neb. Const. art. III, § 2, alone provides for the number of signatures required. The Secretary of State contends that Neb. Const. art. III, §§ 2 and 4, provide for the number of signatures required.

The first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted by the people independently of the Legislature. This power may be invoked by petition wherein the proposed measure shall be set forth at length. If the petition be for the enactment of a law, it shall be signed by seven percent of the registered voters of the state, and if the petition be for the amendment of the Constitution, the petition therefor shall be signed by ten percent of such registered voters....