State v. Kelley
| Decision Date | 12 January 1996 |
| Docket Number | No. S-95-300,S-95-300 |
| Citation | 249 Neb. 99,541 N.W.2d 645 |
| Parties | STATE of Nebraska, Appellant, v. Dianne G. KELLEY, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the trial court.
2. Statutes: Courts. It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute.
3. Statutes: Words and Phrases. Effect must be given, if possible, to all the several parts of a statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided.
4. Constitutional Law: Rules of the Supreme Court: Statutes: Notice. A criminal defendant is subject to Neb.Ct.R. of Prac. 9E (rev.1992), which requires a party challenging the constitutionality of a statute to file a copy of the brief assigning unconstitutionality with the Attorney General within 5 days of the filing of the brief with the Clerk of the Supreme Court.
5. Statutes. A motion to quash is a proper procedural method for challenging the facial validity of a statute.
6. Constitutional Law: Statutes. If a defect is on the face of a statute, a motion to quash is the proper method to challenge its constitutionality.
7. Constitutional Law: Statutes. A motion to quash is not appropriate when attacking the constitutionality of a statute as applied.
8. Constitutional Law: Statutes. A challenge to a statute, asserting that no valid application of the statute exists because it is unconstitutional on its face, is a facial challenge.
9. Constitutional Law: Statutes: Appeal and Error. An appellate court must judge the constitutionality of an act of the Legislature not necessarily by what has been done or possibly may be done under it, but by what the statute authorizes to be done under its provisions.
10. Constitutional Law: Statutes: Standing. The traditional rule of standing applies to First Amendment challenges to a statute on the ground of vagueness: one who has engaged in conduct which is clearly prohibited by the questioned statute cannot complain that the statute is vague when applied to the conduct of others.
11. Standing. Vagueness, overbreadth, and the unbridled discretion of an administrative decisionmaker are distinct concepts which provide independent grounds for standing.
12. Constitutional Law: Statutes: Licenses and Permits. Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad.
13. Constitutional Law. Governmental action constitutes a prior restraint when it is directed to suppressing speech because of its content before the speech is communicated.
14. Constitutional Law: Presumptions. While prior restraints are not unconstitutional per se, they bear a heavy presumption against constitutional validity.
15. Constitutional Law. Protected speech may be subject to reasonable time, place, and manner restrictions.
Vincent Valentino, Special Prosecutor, for appellant.
Rebecca K. Salmon and Denzel R. Busick, of Luebs, Leininger, Smith, Busick & Johnson, Grand Island, for appellee.
In this appeal, we are asked to decide whether the statutory scheme of Neb.Rev.Stat. §§ 28-1440 to 28-1446 (Reissue 1989), which provide licensing requirements for charitable solicitors, constitutes an unconstitutional prior restraint on free speech.
The special prosecutor appointed by the Hall County Attorney has filed error proceedings in this court pursuant to Neb.Rev.Stat. §§ 29-2315.01 to 29-2316 (Reissue 1989 & Cum.Supp.1994), taking exception to the determination of the district court for Hall County that §§ 28-1440 to 28-1446 were unconstitutional; that the motion to quash by the appellee, Dianne G. Kelley, was the correct method of challenging the facial validity of the statutory scheme of §§ 28-1440 to 28-1446; that Kelley had standing to challenge the constitutionality of the statutes; and that Kelley was not required to notify the Attorney General of her constitutional challenge. We overrule the State's exceptions and affirm the district court's rulings on each of these assignments of error because §§ 28-1440 to 28-1446 are prior restraints of speech and, therefore, unconstitutional.
The Hall County Attorney requested that a special prosecutor be appointed for the purpose of investigating allegations involving violations of open meeting laws, conflicts of interest, accountability and disclosure violations, and misuse of official information by employees and city council members of the city of Grand Island. The special prosecutor discovered that Kelley, apparently an employee of the city, had raised funds for a celebration during the dedication of the Grand Island city hall building by soliciting contributions from people outside of Hall County. The special prosecutor filed an amended complaint on behalf of the State against Kelley, complaining that her solicitation of funds outside of Hall County for the city hall dedication violated § 28-1445, which provides: "Any person so soliciting for himself or for any organization, corporation, association or institution that shall not previously have complied with the provisions of sections 28-1440 to 28-1446 shall be guilty of a Class I misdemeanor." Section 28-1440 provides in relevant part the following registration requirements for a charitable solicitor:
Any person, organization, corporation, association or institution, either resident or nonresident of this state, which solicits funds in any county of this state other than where its home office is located, shall first obtain a letter of approval from the county attorney of the county in which its home office is located, which letter shall be forwarded to the Secretary of State together with a fee of one dollar. Upon receipt of such letter and fee by the Secretary of State, he shall issue a certificate granting the privilege of soliciting throughout the state for the balance of such calendar year.
In response, Kelley filed a plea in abatement and a motion to quash, and the State demurred to both motions. The county court sustained the State's demurrer with regard to the plea in abatement, but denied the demurrer to the motion to quash.
After hearing arguments on the motion to quash, the county judge for Hall County sustained the motion to quash with respect to paragraphs 6, 7(a), 7(b), and 7(g), which challenged the statutory scheme of §§ 28-1440 to 28-1446 on the grounds of vagueness and overbreadth, and of having a "chilling effect on rights guaranteed by the First Amendment."
The court found that The county court judge overruled the motion The State instituted error proceedings to the district court for Hall County citing as error the county court's conclusions that (1) count II of the amended complaint was unconstitutional on its face, (2) Kelley did not have to give notice to the Attorney General of these proceedings, (3) Kelley had the requisite standing to raise the issue of the unconstitutionality of the statutory scheme embracing § 28-1445, (4) the statutory scheme of §§ 28-1440 to 28-1446 was violative of the First Amendment to the U.S. Constitution, and (5) a motion to quash was the proper way to raise a First Amendment challenge to a statute.
to quash with respect to all other paragraphs.
After the district court affirmed the county court's judgment, the State initiated error proceedings from the decision of the district court pursuant to §§ 29-2315.01 to 29-2316.
The State assigns as error the lower courts' rulings that (1) Kelley has standing to assert the unconstitutionality of §§ 28-1440 to 28-1446, (2) the appropriate method to challenge the constitutionality of §§ 28-1440 to 28-1446 is by a motion to quash, (3) Kelley was not required to give notice to the Attorney General of her intention to challenge the constitutionality of §§ 28-1440 to 28-1446, and (4) the statutory scheme of §§ 28-1440 to 28-1446 is violative of the First Amendment to the U.S. Constitution as an unconstitutional prior restraint of protected speech.
Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the trial court. Chrysler Motors Corp. v. Lee Janssen Motor Co., 248 Neb. 322, 534 N.W.2d 309 (1995); Proctor v. Minnesota Mut. Fire & Cas., 248 Neb. 289, 534 N.W.2d 326 (1995); Boll v. Department of Revenue, 247 Neb. 473, 528 N.W.2d 300 (1995).
We begin by noting that the solicitation of charitable contributions is speech protected under the First Amendment. See, Riley v. National Federation of Blind, 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988); Schaumburg v. Citizens for Better Environ., 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). Before reaching the constitutional issues, however, we must discuss the preliminary matters of the jurisdiction of this court, the procedure used by Kelley, and the standing of Kelley to attack the constitutionality of §§ 28-1440 to 28-1446.
The State claims that Kelley does not have standing to...
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...statute defining the offense with which he or she was charged. State v. Feiling, 255 Neb. 427, 585 N.W.2d 456 (1998); State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996). See also, State v. McDowell, 246 Neb. 692, 522 N.W.2d 738 (1994). We have also insisted on strict compliance with the re......
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...United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); United States Gypsum Co., supra note 21. 32. See State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996). 33. See State v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002). FN34. State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996). ......
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...arbitrary enforcement provide independent grounds for challenging the constitutionality of a criminal statute under State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996). Regardless of how Thomas labels his challenge, we do not reach the constitutional issue because we conclude that it has be......
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