State ex rel. Wieland v. Moore

• Decision Date: 04 April 1997
• Docket Number: No. S-96-429,S-96-429
• Citation: 252 Neb. 253,561 N.W.2d 230
• Parties: STATE of Nebraska ex rel. William A. WIELAND, Relator, v. Scott MOORE, Secretary of State of the State of Nebraska, Respondent.
• Court: Nebraska Supreme Court

Page 230

561 N.W.2d 230

252 Neb. 253

STATE of Nebraska ex rel. William A. WIELAND, Relator, v. Scott MOORE, Secretary of State of the State of Nebraska, Respondent.

No. S-96-429.

Supreme Court of Nebraska.

April 4, 1997.

Syllabus by the Court

1. Pleadings. Neb.Rev.Stat. § 25-820 (Reissue 1995) permits a plaintiff to file a reply in order to affirm or deny any new matter contained in a defendant's answer. Where the answer contains new matter, the plaintiff may reply to such new matter, denying generally or specifically each allegation controverted by the plaintiff; and the plaintiff may allege, in ordinary and concise language, and without repetition, any new matter not inconsistent with the petition, constituting a defense to such new matter in the answer.

2. Pleadings. A reply cannot be used to plead a request for different relief.

3. Pleadings. A plaintiff cannot shift positions by means of a reply or use the reply to introduce new causes of action.

4. Constitutional Law: Supreme Court: Jurisdiction: Appeal and Error. Except in the exercise of its appellate jurisdiction, the Nebraska Supreme Court is one of limited and enumerated powers.

5. Constitutional Law: Supreme Court: Jurisdiction. Where a cause of action is not listed in article V, § 2, of the Nebraska Constitution, the limitations of the constitutional provision are effective in prohibiting the original jurisdiction of the Nebraska Supreme Court.

6. Constitutional Law: Supreme Court: Jurisdiction: Declaratory Judgments. Bringing an action pursuant to the Uniform Declaratory Judgments Act, Neb.Rev.Stat. §§ 25-21,149 to 25-21,164 (Reissue 1995), does not, in and of itself, satisfy the jurisdictional requirements of Neb. Const. art. V, § 2, because article V, § 2, does not include declaratory relief as one of the grounds for relief that the Nebraska Supreme Court may address pursuant to its limited original jurisdiction. Consequently, absent a concurrent basis for jurisdiction over the subject matter of a declaratory judgment action, the Supreme Court has no original jurisdiction under article V, § 2, to address declaratory judgment actions.

7. Constitutional Law: Statutes: Jurisdiction. Neb. Const. art. V, § 2, does not convey original jurisdiction on cases involving the constitutionality of a statute.

8. Constitutional Law: Jurisdiction: Public Officers and Employees: Parties. The jurisdiction conferred by the Nebraska Constitution in all civil cases in which the State is a party is not confined to cases in which the State has a mere pecuniary interest 9. Supreme Court: Jurisdiction: Parties. Jurisdiction will not be entertained by the Nebraska Supreme Court in cases where the State is a nominal party. The State must have a direct interest in having the matter determined.

but the jurisdiction may extend to all cases in which the State, through its proper officers, seeks the enforcement of public right or the restraint of public wrong.

10. Constitutional Law: Public Officers and Employees: Parties: Declaratory Judgments. When a private citizen files an original action for declaratory judgment against a state officer, the State is not necessarily a party for purposes of Neb. Const. art. V, § 2.

11. Constitutional Law: Public Officers and Employees: Parties. Merely suing the Secretary of State and making the Secretary a party does not necessarily make the State a party to a civil action for purposes of Neb. Const. art. V, § 2.

12. Actions: Public Officers and Employees. An action against a state officer to obtain relief from an invalid act or from an abuse of authority by the officer is not a suit against the State.

Denzel R. Busick, of Luebs, Leininger, Smith, Busick & Johnson, Grand Island, for relator.

Don Stenberg, Attorney General, L. Steven Grasz, and Dale A. Comer, Lincoln, for respondent.

Patrick B. Griffin and Richard P. Jeffries, Kutak Rock, for amici curiae E. Benjamin Nelson, Governor of Nebraska, and Executive Board of the Legislative Council, Nebraska Legislature.

WHITE, C.J., CAPORALE, WRIGHT, and CONNOLLY, JJ., and LIKES, District Judge.

WRIGHT, Justice.

William A. Wieland commenced this original action requesting, inter alia, a writ of mandamus instructing the Secretary of State (Secretary) to withhold a number of legislatively proposed constitutional amendments from the May 14, 1996, election ballot. A second amended petition requested, in the alternative, a declaratory judgment that certain legislatively proposed amendments to the Nebraska Constitution which appeared on the May 14, 1996, ballot were null and void as a matter of law.

FACTS

During the first session of the 94th Legislature, the Nebraska Legislature passed the following legislative resolutions proposing amendments to the Nebraska Constitution: Legislative Resolution 1CA (permitting Legislature to provide for enforcement of "mediation, binding arbitration agreements, and other forms of dispute resolution" which are entered into voluntarily), Legislative Resolution 3CA (creating Tax Equalization and Review Commission), Legislative Resolution 4CA (providing that legislative bills, resolutions, and amendments thereto should be read at large unless three-fifths of members of Legislature vote to dispense with such reading), and Legislative Resolution 21CA (providing list of rights for crime victims).

After these legislative resolutions passed, the Executive Board of the Legislative Council of the Legislature met and approved explanatory statements for each resolution. The legislative resolutions, along with the respective explanatory statements, were transmitted to the Secretary's office. The Secretary accepted these ballot items without editing and transmitted them to the county clerks and election commissioners for inclusion on the May 14, 1996, ballot.

On April 10, 1996, Wieland wrote to the Secretary, alleging that the Legislature had failed to comply with mandatory constitutional and statutory provisions in adopting the resolutions at issue, and requesting the removal of these items from the May 14 ballot. The Secretary advised Wieland that the ballot items would not be removed from the ballot.

Wieland then filed with this court an initial verified petition which alleged constitutional and statutory violations relating to the manner of adoption and the content of the proposed ballot items and a motion requesting On May 7, 1996, Wieland filed an amended petition adding an additional cause of action to the effect that if this court did not issue a writ of mandamus prior to the impending election, the court should after the election issue a declaratory judgment that each of the legislative resolutions are unconstitutional and, therefore, null and void. Wieland did not request leave to file this amended petition. Without leave of court, Wieland also filed a second amended petition restating the three causes of action in the two previous petitions and adding additional allegations regarding the deficiencies of the various ballot items.

leave to file the action as an original action in this court. The original action request was based upon the allegation that the action is a civil case in which the State is a party and that the action is for mandamus relief. We granted leave for Wieland to file an original action.

The Secretary's answer to the second amended petition alleged, inter alia, that the provisions of the second amended petition requesting a writ of mandamus were moot because the election and tabulation of the vote count had already occurred prior to the filing of the second amended petition. The answer further alleged that Wieland's amended petition and second amended petition should be stricken because they contained new matter and were filed without obtaining leave of court, as required by Neb. Ct. R. of Prac. 15 A (rev.1996).

Wieland's reply denied that the request for a writ of mandamus was moot and alleged that the Secretary had a duty not to "enroll" any amendments that were not adopted according to statutory guidelines. The reply modified Wieland's original request for mandamus and requested that this court issue a writ of mandamus directing the Secretary not to enroll any of the challenged amendments or to remove from the rolls any of these amendments that had already been enrolled.

ANALYSIS

WRIT OF MANDAMUS

Wieland initially requested leave of this court to docket the case as an original action pursuant to rule 15 A. After reviewing the petition to determine whether it could be filed as an original action under Neb. Const. art. V, § 2, we granted leave to file the petition in this court.

Rule 15 A, which governs a request for the court to exercise its original jurisdiction, provides:

15. ORIGINAL ACTIONS.

A. How Commenced.

(1) An original action may not be commenced except by leave of court.

(2) Application for leave to commence an original action shall be made by filing with the Supreme Court Clerk a verified petition setting forth the action. Applicant must also file with the clerk a statement setting forth the basis of the court's jurisdiction and the reasons which make it necessary to commence the action here. Seven copies of each must accompany the petition and the statement. No oral argument will be permitted except as may be ordered by the court.

Therefore, an applicant who requests leave to file an original action must provide this court with a petition that will serve as the basis for the action for which the applicant requests leave. One of the purposes of rule 15 A is obvious: The court must determine whether the cause of action and theory of relief that the party intends to pursue are within the range of issues that article V, § 2, permits this court to address pursuant to our limited original action jurisdiction.

Article V, § 2, provides in part: "The Supreme Court shall have jurisdiction in all cases relating to the revenue, civil cases in which the state is a party, mandamus, quo warranto, habeas...