State ex rel. Wagner v. Evnen

• Court: Supreme Court of Nebraska
• Parties: STATE OF NEBRASKA EX REL. TERRY WAGNER, RELATOR, v. ROBERT B. EVNEN, SECRETARY OF STATE OF THE STATE OF NEBRASKA, RESPONDENT, AND NEBRASKANS FOR SENSIBLE MARIJUANA LAWS, ALSO KNOWN AS NEBRASKANS FOR MEDICAL MARIJUANA, ET AL., INTERVENORS.
• Docket Number: No. S-20-623.,S-20-623.
• Decision Date: 10 September 2020

STATE OF NEBRASKA EX REL. TERRY WAGNER, RELATOR,
v.
ROBERT B. EVNEN, SECRETARY OF STATE OF THE STATE OF NEBRASKA,
RESPONDENT, AND NEBRASKANS FOR SENSIBLE MARIJUANA LAWS,
ALSO KNOWN AS NEBRASKANS FOR MEDICAL MARIJUANA, ET AL., INTERVENORS.

No. S-20-623.

SUPREME COURT OF NEBRASKA

September 10, 2020

OPINION OF THE SUPREME COURT OF NEBRASKA

NOTICE: THIS OPINION IS BEING POSTED TEMPORARILY IN "SLIP" OPINION FORM. IT WILL BE REPLACED AT A LATER DATE WITH AN "ADVANCE" OPINION, WHICH WILL INCLUDE A CITATION.

Original action. Writ of mandamus granted.

Mark A. Fahleson, of Rembolt Ludtke, L.L.P., for relator.

Jason W. Grams and Michael L. Storey, of Lamson, Dugan & Murray, L.L.P., and Teri L. Vukonich-Mikkelsen, of Reisinger Booth & Associates, P.C., L.L.O., for intervenors.

Page 2

1. Constitutional Law: Justiciable Issues: Appeal and Error. Questions of justiciability and of constitutional interpretation that do not involve factual dispute are questions of law.

2. Appeal and Error. An appellate court reviews questions of law de novo, drawing independent conclusions irrespective of any decision made below.

3. Mandamus: Words and Phrases. Mandamus is a law action and represents an extraordinary remedy, not a writ of right.

4. Mandamus. Whether to grant a writ of mandamus is within a court's discretion.

5. Courts: Justiciable Issues. Before reaching the legal issues presented for review, courts must determine whether the issues presented are justiciable.

6. ___: ___. Ripeness is a justiciability doctrine that courts consider in determining whether they may properly decide a controversy.

7. Courts. The fundamental principle of ripeness is that courts should avoid entangling themselves, through premature adjudication, in abstract disagreements based on contingent future events that may not occur at all or may not occur as anticipated.

8. Initiative and Referendum: Justiciable Issues. A challenge to a voter ballot initiative based on substantive provisions of law is not ripe before an election because an opinion on the substantive challenge based on the contingent future event of the measure's passage would be merely advisory.

9. ___: ___. A preelection challenge based on the procedural requirements to a voter ballot initiative's placement on the ballot is ripe for resolution.

10. Initiative and Referendum. A challenge to the legal sufficiency of a ballot initiative is a claim based on procedural requirements.

11. Constitutional Law: Statutes: Initiative and Referendum: Appeal and Error. Because the voter ballot initiative power is precious to the people, an appellate court construes statutory and constitutional provisions dealing with voters' power of initiative liberally to promote the democratic process.

12. Constitutional Law: Statutes: Initiative and Referendum. By petition, the initiative power may be invoked and, if the appropriate procedures are followed, used to propose statutory or constitutional amendments to the state's voters without resorting to the Nebraska Legislature.

13. Constitutional Law: Initiative and Referendum. The people's reserved power of the initiative and their self-imposed requirements of procedure in exercising that power are of equal constitutional significance.

14. ___: ___. The single subject rule under Neb. Const. art. III, § 2, was adopted by voter ballot initiative to avoid, among other things, logrolling.

15. Initiative and Referendum: Words and Phrases. Logrolling is the practice of combining dissimilar propositions into one voter initiative so that voters must vote for or against the whole package even though they only support certain of the initiative's propositions.

Page 3

16. Courts: Initiative and Referendum. Courts in Nebraska follow the natural and necessary connection test for determining whether a voter ballot initiative violates the single subject rule.

17. Initiative and Referendum. Under the natural and necessary connection test, where the limits of a proposed law, having natural and necessary connection with each other, and, together, are a part of one general subject, the proposal is a single and not a dual proposition.

18. ___. The controlling factors in an inquiry under the natural and necessary connection test are the initiative's singleness of purpose and the relationship of other details to its general subject.

19. ___. An initiative's general subject is defined by its primary purpose.

20. Courts: Initiative and Referendum. A court's analysis under the single subject rule begins by characterizing the general subject.

21. Constitutional Law: Initiative and Referendum. A general subject must not be characterized too broadly when considering an amendment to the constitution.

22. Initiative and Referendum. A general subject must be characterized at a level of specificity that allows for meaningful review of the natural and necessary connection between it and the initiative's other purposes.

23. Constitutional Law: Initiative and Referendum. The single subject requirement may not be circumvented by selecting a general subject so broad that the rule is evaded as a meaningful constitutional check on the initiative process.

24. Words and Phrases. Necessary means something on which another thing is dependent or contingent.

25. Declaratory Judgments: Justiciable Issues. The function of declaratory relief is to determine a justiciable controversy that is either not yet ripe by conventional remedy or, for other reasons, is not conveniently amenable to usual remedies.

26. Declaratory Judgments. Although declaratory judgment actions are permitted by statute, in certain circumstances under the Uniform Declaratory Judgments Act, a declaratory judgment will generally not lie where another equally serviceable remedy is available.

27. Mandamus: Declaratory Judgments. If a writ of mandamus would be adequate and equally serviceable, then a declaratory judgment will not lie.

28. Mandamus: Proof. Mandamus relief is available if the movant can show (1) a clear right to the relief sought, (2) a corresponding clear duty to perform the act requested, and (3) no other plain and adequate remedy is available in the ordinary course of law.

29. Public Officers and Employees: Initiative and Referendum. Nebraska law imposes on the Secretary of State a nondiscretionary duty to determine the legal sufficiency of ballot measures and withhold any legally insufficient measure from the ballot.

30. Initiative and Referendum. The single subject rule was adopted by voters to protect against voter ballot initiatives that failed to give voters an option to clearly express their policy preference.

31. Constitutional Law: Courts: Initiative and Referendum. Just as courts must respect and give effect to the power the people have reserved to themselves to amend the constitution through initiative measures, courts are obliged to give meaningful effect to the people's self-imposed limitations on that power.

Page 4

HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.

PER CURIAM.

I. INTRODUCTION

The Nebraska Secretary of State certified a voter ballot initiative to create a constitutional right for persons with serious medical conditions to produce and medicinally use cannabis, subject to a recommendation by a licensed physician or nurse practitioner. A Nebraska resident challenged the decision, claiming the initiative violated the single subject rule under Neb. Const. art. III, § 2, and should be withheld from the November 2020 general election ballot. We reverse the Secretary of State's decision and issue a writ of mandamus directing him to withhold the initiative from the November 2020 general election ballot.

II. FACTUAL BACKGROUND

A voter ballot initiative petition to create a constitutional right for persons with serious medical conditions to produce and medicinally use cannabis, subject to a recommendation by a licensed physician or nurse practitioner, was filed with the Secretary of State, Robert B. Evnen, on February 5, 2019, to certify it for inclusion on the November 2020 general election ballot. Nebraskans for Sensible Marijuana Laws, a ballot question committee, as well as two state senators, Adam Morfeld and Anna Wishart, sponsored the petition. The objective of the petition was "to amend the Nebraska Constitution to provide the right to use, possess, access, and safely produce cannabis, and cannabis products and materials, for serious medical conditions as recommended by a physician or nurse practitioner."

To accomplish this objective, the sponsors proposed the "Nebraska Medical Cannabis Constitutional Amendment" (NMCCA), an addition of Neb. Const. art. XIX, § 1. If approved, the NMCCA would, in nine subsections, (1) establish a constitutional right for adults 18 years or older with serious health conditions "to use, possess, access, purchase, and safely and discreetly produce" medicinal cannabis as recommended by a licensed physician or nurse practitioner; (2) establish the same right for minors younger than 18 years of age, provided they obtain the consent of a parent or legal guardian; (3) provide that private entities "may grow, cultivate, process, possess, transport, sell, test, or transfer possession of cannabis, cannabis products, and cannabis-related equipment for sale or delivery to an individual authorized" under the first two subsections; (4) decriminalize the medicinal use of cannabis for persons who qualify under the first two subsections; (5) subject persons' rights to use cannabis under the first two subsections to reasonable laws, rules, and regulations; (6) set forth certain limitations on the expansion of medicinal cannabis; (7) provide that employers are not required to allow employees to work while impaired by cannabis; (8) provide that insurance providers are not required to provide coverage for the use of cannabis; and (9) define cannabis.

Evnen transmitted the NMCCA to the Nebraska Attorney General, Douglas J. Peterson, to prepare a statement explaining the NMCCA and the effect of a...