Loontjer v. Robinson

• Decision Date: 24 October 2003
• Docket Number: No. S-02-1030.,S-02-1030.
• Citation: 670 N.W.2d 301,266 Neb. 902
• Parties: Pat LOONTJER, Appellee and Cross-Appellant, v. Greg ROBINSON et al., Appellants and Cross-Appellees, The Honorable John Gale, Secretary of State of the State of Nebraska, Appellee and Cross-Appellee, and Timothy A. Bundy, Intervenor-Appellee and Cross-Appellee.
• Court: Nebraska Supreme Court

670 N.W.2d 301

266 Neb. 902

Pat LOONTJER, Appellee and Cross-Appellant, v. Greg ROBINSON et al., Appellants and Cross-Appellees, The Honorable John Gale, Secretary of State of the State of Nebraska, Appellee and Cross-Appellee, and Timothy A. Bundy, Intervenor-Appellee and Cross-Appellee.

No. S-02-1030.

Supreme Court of Nebraska.

October 24, 2003.

John M. Boehm and Patrick T. O'Brien, of Butler, Galter, O'Brien & Boehm, Lincoln, for appellants.

L. Steven Grasz and Michael S. Degan, of Blackwell, Sanders, Peper & Martin, L.L.P., Omaha, for appellee Pat Loontjer.

J.L. Spray and Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, Lincoln, for intervenor-appellee.

Jon Bruning, Attorney General, and Dale A. Comer, Lincoln, for appellee John Gale, Nebraska Secretary of State.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

Greg Robinson, Charles Whitney, Harry Prososki, Gerald Brown, Russell Dodd, Verlouis Forster, and Richard Lindauer, all members of the Committee for Local Option Gaming (the Committee), appeal from the district court's order enjoining the placement of an initiative petition on the ballot. The petition sought to accomplish the following:

(1) Revise the Nebraska Constitution to allow electronic gaming devices under local control;

(2) Provide limitations on the manner income from the gaming could be spent;

(3) Limit the ability of the Legislature to tax the gaming; and

(4) Require the creation of a gaming commission.

Appellee Pat Loontjer filed for declaratory relief and sought to enjoin the placement of the petition on the ballot.

The district court determined there was substantial compliance with Neb.Rev.Stat. § 32-1405(1) (Reissue 1998), which requires the sponsors of an initiative petition to file a sworn statement listing their names and street addresses. The court also determined, however, that the petition violated the single subject rule of Neb. Const. art. III, § 2. Thus, the court enjoined the placement of the initiative on the ballot. Loontjer cross-appeals the court's determination that there was substantial compliance with § 32-1405(1).

We determine that the petition was legally insufficient because the sponsors failed to include a sworn statement of their names and street addresses. Accordingly, we affirm.

BACKGROUND

On December 16, 2001, the appellants submitted an Initiative for Local Option Gaming to the Nebraska Secretary of State for review before circulating the petition for signatures to place the initiative on the ballot. The initiative petition was not individually signed. Instead, "THE LOCAL OPTION GAMING COMMITTEE BOX 636 KIMBALL, NEBRASKA 69145" was typed at the end. The appellants submitted a cover letter, omitting their addresses; however, it was not sworn. A handwritten note signed by Prososki stated that Bill Kurtenbach "can take care of any correspondence for me" and provided Kurtenbach's post office box address. Testimony at trial showed that the appellants are members of the Nebraska Cooperative Government Commission (NCGC), an interlocal agency that operates keno for a group of about 72 cities, counties, and villages in Nebraska. Kurtenbach is an attorney that represents the NCGC.

In January 2002, the appellants submitted the final draft; the draft does not contain a sworn statement of the sponsors with their street addresses. Instead, it contains an unsworn typed signature of the Committee and provides street and Internet addresses. A cover letter contains the unsworn signatures of the appellants and their telephone numbers. The appellants offered an exhibit, Kurtenbach's sworn statement, filed with the Secretary of State 3 days before trial, stating that the appellants constitute all of the sponsors of the petition. The court, however, ruled that the exhibit was inadmissible.

The record shows that the NCGC contracted with Community Lottery Systems, Inc., also known as Lotto Nebraska, a company operated by Paul Schumacher, to run keno. Schumacher also owns an interest in Community Internet Systems, Inc., which hosts an Internet Web site for the Committee.

The record shows that the initial work on the petition was done through the NCGC, and the Committee was formed later. A "Statement of Organization of a Political Committee" was not filed for the Committee until December 26, 2001. Robinson, the chairman of both the Committee and the NCGC, testified that the earliest versions of the petition were drafted at his request by Schumacher, Kurtenbach, and a law firm. Robinson stated that he believed Schumacher was involved in drafting the petition from "day one." He believed that drafting the petition was part of Kurtenbach's duties as general counsel for the NCGC.

In July 2001, after early versions had already been drafted, a motion was passed at a NCGC meeting to ask Schumacher and Kurtenbach to draft a petition. Specifically, minutes of the July 28, 2001, NCGC meeting state:

Item No. 7: Discussion and action on gaming legislation in the 2001 legislative session and initiative petitions Motion- Whitney, second- Forster, to encourage Lotto Nebraska and the NCG General Counsel to (1) cause an initiative petition drive to be commenced that would permit cities and counties to conduct games of chance or skill or any combination thereof using player activated electronic gaming devices for the purpose of local tax relief and keeping Nebraska resources in Nebraska, and (2) form the necessary alliances to accomplish the circulation and passage of such a petition in the November, 2002, general election....

The motion passed unanimously. On October 26, 2001, the NCGC voted to endorse the enactment of the petition. The record also contains evidence that Schumacher asked the Committee to "sponsor" the petition. When Robinson delivered signed petitions to the Secretary of State's office in July 2002, he delivered a speech that Schumacher helped to draft. Schumacher arranged and paid for Robinson to arrive at the State Capitol Building by charter airplane.

Kurtenbach testified that several people, including Schumacher, had the initial idea to seek a constitutional amendment to allow video gambling. Kurtenbach agreed that a section of the initiative requires that no gaming operator shall be licensed unless it has demonstrated proficiency in operating local government lotteries. Kurtenbach believed around a dozen companies would meet the requirement. According to Kurtenbach, various people, including himself, Schumacher, and Whitney drafted language in the petition.

Schumacher has been described as the person who spearheaded the fundraising for the Committee after it was formed. Schumacher or his corporation contributed $62,000 to the Committee. According to Robinson, Schumacher was not made an "official sponsor" of the petition because his company had the potential to profit if the initiative was passed. Schumacher testified that it was not his initial idea to try to get a constitutional amendment allowing video gaming. Instead, he testified about several people or groups that had an interest in seeking an amendment. He admitted to being involved in the drafting process, but denied drafting the early forms of the petition or the entire petition. According to Schumacher, it was Kurtenbach's idea to form the Committee. Schumacher was involved in the process to obtain signatures on the petition, but the level of that involvement is unclear.

The deputy Secretary of State testified that he believed the sponsors of the petition were the appellants. He stated that his office provides a place at the bottom of a petition for sponsors to place any information regarding where to return signed petitions, which information in this case was the name and address of the Committee.

The Secretary of State determined that the petition received enough signatures to place it on the ballot. Loontjer sought declaratory and injunctive relief to stop the petition from being placed on the ballot. Loontjer alleged that the petition (1) failed to include a sworn statement of its sponsors in violation of § 32-1405; (2) violated the single subject rule under Neb. Const. art. III, § 2; (3) contained an insufficient ballot title; and (4) violated the taxing authority of the Legislature. Appellee Timothy A. Bundy intervened with the same allegations but did not challenge the existence of a sworn statement. The Secretary of State was named as a defendant to the action.

In addressing whether the petition properly contained a sworn statement of the sponsors, the district court determined that Schumacher and Kurtenbach were not "sponsors" of the petition. The court also determined that the Committee was not a sponsor of the petition and dismissed it from the action. Instead, the court determined that the individual appellants were the sponsors.

The court next determined that although the appellants failed to include a sworn statement with their street addresses, they had substantially complied with the requirements of § 32-1405(1). The court determined that the purpose of § 32-1405(1) is to avoid fraud and deception and concluded that the appellants had provided enough information to make it possible to identify and locate them as the sponsors of the petition.

The court ruled, however, that the petition violated the single subject rule. The court determined that the petition's purpose is the "expansion of gambling." The court then addressed the single subject issue and determined that the following provisions of the petition lacked a natural or necessary connection with each other or the purpose of the petition:

(1) the requirement that at least 7% of the net proceeds be used for charitable grants (2) the authorization that revenue obtained from the permitted gambling to be used for bonuses to certified teachers and programs of tuition credits to students;

(3) the prohibition against the Legislature from levying any

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