State ex rel. Shepherd v. Nebraska Equal Opportunity Com'n
| Citation | 557 N.W.2d 684,251 Neb. 517 |
| Decision Date | 17 January 1997 |
| Docket Number | Nos. S-95-984,S-95-985,s. S-95-984 |
| Parties | , 12 IER Cases 786 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. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Constitutional Law: Statutes: Proof. The party claiming a statute is unconstitutional has the burden to show and clearly demonstrate that the questioned statute is unconstitutional.
2. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality.
3. Constitutional Law: Statutes. Even when a law is constitutionally suspect,
a court will attempt to interpret it in a manner consistent with the Constitution.
4. 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.
5. 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 further guidance of public officials, and the likelihood of future recurrence of the same or a similar problem.
6. Constitutional Law: Appeal and Error. 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.
7. Constitutional Law: Mandamus. A defendant must have an opportunity to raise nonfrivolous, constitutional challenges to the issuance of a peremptory writ of mandamus.
8. Constitutional Law. Article II, § 1, of 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.
9. Public Officers and Employees. The power to remove an employee in the executive branch of state government is an executive duty and prerogative.
10. Public Officers and Employees. The Public Counsel (also known as the Ombudsman) is an officer of the legislative branch of state government.
11. Statutes: Words and Phrases. As a general rule, in the construction of statutes, the word "shall" is considered mandatory and inconsistent with the idea of discretion.
12. Statutes: Intent: Words and Phrases. 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.
13. Statutes: Intent. A word or phrase repeated in a statute will bear the same meaning throughout the statute, unless a different intention appears.
14. Constitutional Law: Jurisdiction. It is an imperative duty of the judicial department of government to protect its jurisdiction at the boundaries of power fixed by the Constitution.
15. Constitutional Law: Legislature. 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.
16. Constitutional Law: Legislature. 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.
Don Stenberg, Attorney General, Alfonza Whitaker, and Charles Lowe, Lincoln, for appellants.
Dalton W. Tietjen, of Tietjen, Simon & Boyle, Omaha, for appellees.
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 Neb.Rev.Stat. §§ 81-2706 and 81-2707(1) (Reissue 1994) of the State Government Effectiveness Act.
We conclude that § 81-2707(1) is unconstitutional because it permits an officer of the legislative branch of state government to encroach upon the prerogatives and duties of the executive branch in violation of the separation of powers clause of article II, § 1, of the Nebraska Constitution. As a result, we reverse the district court's orders issuing peremptory writs of mandamus, without reaching the constitutionality of § 81-2706.
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), Neb.Rev.Stat. §§ 81-2701 through 81-2710 (Reissue 1994 & Cum.Supp.1996).
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." § 81-2702.
As required by § 81-2706(1) of the Whistleblower Act, the Ombudsman conducted an investigation and found there existed reasonable grounds to believe that the appellees were fired for engaging in protected whistleblower activity. The Ombudsman, as required by § 81-2706(4), then issued his findings to the State Personnel Board. The State Personnel Board, without any further proceedings, then ordered the NEOC to reverse the firings and to reinstate the appellees to their previously held positions of employment until an official hearing could be held pursuant to § 81-2707(1).
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 reinstate the appellees to their positions. The NEOC appeals, and the two appeals have been consolidated for purposes of briefing and argument.
Summarized and rephrased, the NEOC alleges the district court erred in entering peremptory writs of mandamus because §§ 81-2706 and 81-2707(1) of the Whistleblower Act are unconstitutional, in violation of the separation of powers clause of Neb. Const. art. II, § 1.
We note that §§ 81-2706 and 81-2707 were amended effective September 9, 1995. See §§ 81-2706 and 81-2707 (Cum.Supp.1996). The amended versions did not go into effect until after the Ombudsman and the State Personnel Board acted under, and the district court applied, §§ 81-2706 and 81-2707 (Reissue 1994) in the instant case. The amendments do not affect any issue pertinent to these appeals. Thus, these appeals will be decided under §§ 81-2706 and 81-2707 (Reissue 1994).
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).
As a result of a grievance procedure contained in the state's union contract with the Nebraska Association of Public Employees/AFSCME, an arbitrator has ordered that the appellees be reinstated to employment with the NEOC. Thus, a preliminary issue presented is whether the arbitration order rendered the appeal before this court moot.
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.
Before reaching the NEOC's separation of powers argument, we must first...
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