State ex rel. Spire v. Beermann
| Decision Date | 18 May 1990 |
| Docket Number | No. 89-738,89-738 |
| Citation | 235 Neb. 384,455 N.W.2d 749 |
| Parties | , 60 Ed. Law Rep. 930 STATE of Nebraska ex rel. Robert M. SPIRE, Attorney General of the State of Nebraska, Relator, v. Allen J. BEERMANN, Secretary of State of the State of Nebraska, Respondent. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Statutes: Proof. One claiming that a statute is unconstitutional has the burden to show that the questioned statute is unconstitutional.
2. Constitutional Law: Statutes: Proof. Unconstitutionality of a statute must be clearly demonstrated before a court can declare the statute unconstitutional.
3. Constitutional Law. Before a court will render a judicial interpretation of language in a constitutional provision, it must be demonstrated that the questioned language is unclear or ambiguous and, therefore, requires judicial construction of the constitution.
4. Constitutional Law: Statutes. Constitutional provisions should receive a broader and more liberal construction than statutory provisions, and constitutions are not subject to the rules of strict construction.
Robert M. Spire, Atty. Gen., relator pro se., and Harold I. Mosher, Lincoln, for relator.
Dean G. Kratz and Patrick J. Barrett, of McGrath, North, Mullin & Kratz, Omaha, for respondent.
Bert L. Overcash and Gary B. Schneider, of Woods & Aitken, Lincoln, for amicus curiae, Bd. of Trustees of the Nebraska State Colleges.
This is an original action concerning the alleged unconstitutionality of §§ 6 to 11 of 1989 Neb.Laws, L.B. 247, of the Ninety-first Legislature, First Session, which legislation is now codified as Neb.Rev.Stat. §§ 85-1, 118 to 85-1, 123 (Supp.1989).
Neb. Const. art. V, § 2, provides, in part: "No legislative act shall be held unconstitutional Four judges of this court are of the opinion that the legislation in question is unconstitutional, while three judges of this court are of the opinion that the legislation is constitutional.
except by the concurrence of five judges."
Therefore, since five judges of this court do not hold that §§ 6 to 11 of L.B. 247, that is, §§ 85-1, 118 to 85-1, 123, are unconstitutional, the aforementioned legislation is constitutional.
The following judges are of the opinion that the questioned legislation is unconstitutional: BOSLAUGH, CAPORALE, GRANT, and FAHRNBRUCH, JJ.
The relator, as the Attorney General of the State of Nebraska, issued a written opinion that §§ 6 to 11 of L.B. 247 of the Ninety-first Legislature, First Session, legislation now codified as §§ 85-1, 118 to 85-1, 123, are unconstitutional. In substance, the legislation which was the subject of the Attorney General's opinion terminates the existence of Kearney State College as one of the state colleges in Nebraska and incorporates Kearney State College into the system of the University of Nebraska. Relying on the Attorney General's opinion concerning L.B. 247, the members of the Board of Trustees of the Nebraska State Colleges, who are among the state officers required to act under the legislation in question, have refused to implement §§ 6 to 11 of L.B. 247.
Pursuant to Neb.Rev.Stat. § 84-215 (Reissue 1987), the Attorney General brought an action for judicial determination and declaration that §§ 6 to 11 of L.B. 247 are unconstitutional. Respondent is the Secretary of State of Nebraska, whose official duties include support for legislation alleged to be unconstitutional. See § 84-215. Because this is a civil action in which the State is a party, and because this action involves a matter of great public importance, requires a prompt answer, and does not involve any disputed fact, this court granted the Attorney General permission to file an original action in the Supreme Court of the State of Nebraska and prosecute the claim that the legislation is unconstitutional. See, Neb. Const. art. V, § 2; Neb.Rev.Stat. § 24-204 (Reissue 1989).
L.B. 247 has been enacted by the Legislature and was approved by the Governor on May 23, 1989. Sections 6 to 11 of L.B. 247 generally effect, inter alia, the transfer of Kearney State College to the University of Nebraska system and control by the university's Board of Regents.
On July 1, 1991, the existing institution at Kearney known as Kearney State College shall be established as a university and shall be known as the University of Nebraska at Kearney. The University of Nebraska at Kearney shall be under the control and management of and shall be administered by the Board of Regents of the University of Nebraska.
Section 7(1) of L.B. 247 provides, in part:
On July 1, 1991, all property rights, titles, assets, contracts, obligations, and choses in action of any kind existing as of June 30, 1991, owned, held, or controlled by Kearney State College or the Board of Trustees of the Nebraska State Colleges for the benefit of Kearney State College shall be transferred to, assumed by, and carried out by the Board of Regents of the University of Nebraska for the operation and benefit of the University of Nebraska at Kearney....
Section 7(1)(c) of L.B. 247 further provides, in part, that "[p]rior to July 1, 1991, the board of trustees and the Board of Regents shall enter into such agreements as they deem necessary and appropriate to carry out the provisions of sections 6 to 11 of this act...."
Section 8 of L.B. 247 prescribes: "The Board of Regents of the University of Nebraska shall have the power to prescribe the standards for the admission of students and to fix student fees, the curriculum, the degrees, and the certificate program for the University of Nebraska at Kearney."
Under § 9 of L.B. 247, "[t]he chief administrative officer of the University of Nebraska at Kearney shall be appointed by the Board of Regents of the University of Nebraska, shall hold office at the pleasure of the board, and shall receive such compensation as the board may prescribe."
Section 10 of L.B. 247 declares: "The provisions of Chapter 85 relating to the Board of Regents of the University of Nebraska shall be applicable to the University of Nebraska at Kearney except as modified or limited."
In part, § 11(1) of L.B. 247 contains the provision that
[t]here is hereby created the University of Nebraska at Kearney Cash Fund.... All money and funds accruing to the fund when appropriated by the Legislature shall be used for the maintenance and operation of the University of Nebraska at Kearney and shall at all times be subject to the orders of the Board of Regents.
Section 11(2) of L.B. 247 provides, in part, that
Neb. Const. art. VII, § 13, states:
The general government of the state colleges as now existing, and such other state colleges as may be established by law, shall be vested, under the direction of the Legislature, in a board of seven members to be styled as designated by the Legislature, six of whom shall be appointed by the Governor, with the advice and consent of the Legislature, two each for a term of two, four, and six years, and two each biennium thereafter for a term of six years, and the Commissioner of Education shall be a member ex officio. The duties and powers of the board shall be prescribed by law, and the members thereof shall receive no compensation for the performance of their duties, but may be reimbursed their actual expenses incurred therein.
In view of the foregoing provision in the Nebraska Constitution, the Attorney General contends that "the Legislature cannot alter, change[,] remove or transfer the 'general government of the state colleges as now existing, and such other state colleges as may be established by law' from the Board of Trustees of the Nebraska State Colleges," and concludes:
[S]o much of sections 6 to 11 of L.B. 247 that divest the general government of the existing institution of Kearney known as Kearney State College from the Board of Trustees of the Nebraska State Colleges and vests the general government of that institution in the Board of Regents of the University of Nebraska is in violation of section 13 of Article VII of the Constitution of the State of Nebraska.
Brief for relator at 25.
Among his assertions, the Secretary of State claims: Brief for respondent at 6. Also, the Secretary of State contends that the Nebraska Constitution does not mandate existence of state colleges, which include Kearney State College.
"One claiming that a statute is unconstitutional has the burden to show that the questioned statute is unconstitutional." State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. 262, 265, 445 N.W.2d 284, 288 (1989). See, also, State v. Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989); Weiner v. State ex rel. Real Estate Comm., 217 Neb. 372, 348 N.W.2d 879 (1984). Unconstitutionality of a statute must be clearly demonstrated before a court can declare the statute State v. LaChapelle, 234 Neb. 458, 460, 451 N.W.2d 689, 690 (1990). Thus, in this case, the Attorney General has the burden to show that §§ 6 to 11 of L.B. 247 are unconstitutional.
unconstitutional. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).
We also recognize that before a court will render a judicial interpretation of language in a constitutional provision, it must be demonstrated that the questioned language is unclear or ambiguous and, therefore, requires judicial...
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