State v. Monastero
| Decision Date | 17 June 1988 |
| Docket Number | 87-389,87-391,87-388,87-390,Nos. 87-387,s. 87-387 |
| Citation | 424 N.W.2d 837,228 Neb. 818 |
| Parties | STATE of Nebraska, Appellant, v. Joe MONASTERO, Appellee. STATE of Nebraska, Appellant, v. Marlene "Mardy" McCULLOUGH, Appellee. STATE of Nebraska, Appellant, v. Sam KATZMAN, Appellee. STATE of Nebraska, Appellant, v. William M. KATZMAN, Appellee. STATE of Nebraska, Appellant, v. Bernice LABEDZ, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law. Speech protected by the first amendment to the U.S. Constitution includes the free expression or exchange of ideas, the communication of information or opinions, and the dissemination and propagation of views and ideas, as well as the advocacy of causes.
2. Constitutional Law. Not all speech is protected by the first amendment. As speech, fraud, misrepresentation, and deceit are unprotected by the first amendment.
3. Due Process: Criminal Law: Statutes. Due process requires that a penal statute supply adequate and fair notice of the conduct prohibited and also supply an explicit legislative standard defining the proscribed conduct, to prevent arbitrary and discriminatory enforcement at the discretion of law enforcement officials.
4. Due Process: Criminal Law: Statutes. The prohibition against vagueness does not invalidate a statute simply because it could have been drafted with greater precision. The test is whether the defendant could reasonably understand that his conduct was proscribed by the statute.
5. Words and Phrases: Initiative and Referendum. Falsely, as used in Neb.Rev.Stat. § 32-713 (Reissue 1984), means deliberately or intentionally and refers to an act, "to swear," done with the actor's knowledge. Falsely, as used in § 32-713, specifies the element of deliberate or intentional untruth or deceit regarding a circulator's swearing to a petitioner's signature on an initiative petition, that is, the circulator's false swearing must be an intentional or deliberate act.
6. Constitutional Law: Standing: Statutes. Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the first amendment rights of other parties not before the court.
7. Constitutional Law: Standing: Statutes. To have third-party standing to assert that a statute is overbroad and prohibits or impermissibly restricts freedom of speech, a defendant's conduct, as "speech," must be within the purview of the statute claimed tobe overbroad.
8. Constitutional Law: Standing: Statutes. For standing to contest constitutionality of a statute, the contestant must be one who is, or is about to be, adversely affected by the statute in question and must show that, as a consequence of the statute's alleged unconstitutionality, the contestant is deprived of a constitutionally protected right.
Robert M. Spire, Atty. Gen., and William L. Howland, and Ronald L. Staskiewicz, Douglas Co. Atty., for appellant.
Thomas J. Guilfoyle of Frost, Meyers, Guilfoyle & Westover, for appellees.
In separate informations filed in the district court for Douglas County, the State charged the defendants, Joe Monastero, Marlene "Mardy" McCullough, Sam Katzman, William M. Katzman, and Bernice Labedz, with two counts of falsely swearing to a signature upon an initiative petition, in violation of Neb.Rev.Stat. § 32-713 (Reissue 1984). The charges arose from activity relative to the initiative petition to provide a state lottery. Each defendant filed the identical motion to quash the information, alleging that Neb.Rev.Stat. § 32-705 (Cum.Supp.1986) and § 32-713, when read jointly, violated both the Nebraska Constitution and the U.S. Constitution. The district court sustained the defendants' motions. Pursuant to Neb.Rev.Stat. § 29-2315.01 (Reissue 1985), the State has taken exception to the district court's rulings and has appealed to this court.
As the result of Neb. Const. art. III, § 2, the people of Nebraska have reserved the power of the initiative for enactment of laws and constitutional amendments through the initiative petition signed by "electors of the state." Neb. Const. art. III, § 4, directs that the constitutional provisions regarding the initiative "shall be self-executing, but legislation may be enacted to facilitate their operation."
Neb. Const. art. VI, § 1, provides: "Every citizen of the United States, who has attained the age of eighteen years, and has resided within the state and the county and voting precinct for the terms provided by law, shall ... be an elector." Neb. Const. art. VI, § 2, states: "No person shall be qualified to vote who is non compos mentis, or who has been convicted of treason or felony under the laws of the state or of the United States, unless restored to civil rights."
For an initiative petition, § 32-705 prescribes the contents of the petition circulator's affidavit and the "warning," both required to be written on each page of the petition; specifies qualifications for a petition circulator; and prohibits a "hired and salaried" circulator:
Every sheet of every petition mentioned in sections 32-702 to 32-704 containing signatures shall have upon it and below the signatures an affidavit in substantially the following form:
STATE OF NEBRASKA )
) ss.
Name of Circulator
deposes and says that he or she is the circulator of the foregoing petition
containing __________ signatures; that he or she is a registered and
qualified voter of the State of Nebraska and county wherein the signatures
were obtained; that each person whose name appears on the petition sheet
personally signed the petition in the presence of affiant; ... that each
petitioner when he or she signed this petition was a legal and qualified
voter of the state and county and qualified to sign the same, and that
affiant stated to each petitioner before he or she affixed his or her
signature the legal effect and nature of such petition.
_________________________________________________
Circulator
_________________________________________________
Address
Subscribed and sworn to before me, a notary public, this ______ day of
________, 19____, at ________, Nebraska.
_________________________________________________
Notary Public
Every sheet of every petition mentioned in sections 32-702 [228 Neb. 821] to 32-704 containing signatures shall have upon it and above the signatures a statement in substantially the following form:
WARNING: Any person signing any name other than his or her own to any petition, any person knowingly signing his or her name more than once for the same measure at one election, any person who is not, at the time of signing or circulating the same, a registered voter and qualified to sign or circulate the same, any person who falsely swears to any signature upon any such petition, any person who accepts money or other things of value for signing the petition, any circulator who offers money or other things of value in exchange for a signature upon any such petition, or any officer or person willfully violating any provision of sections 32-702 to 32-713 shall be guilty of a felony and shall, upon conviction thereof, be punished by a fine not exceeding five hundred dollars, by imprisonment in the Department of Correctional Services adult correctional facility not exceeding two years, or by both such fine and imprisonment. Such statement shall be printed in boldfaced type.
....
Every circulator of a petition shall be of the constitutionally prescribed age or upwards, and a resident and a registered and qualified voter of the State of Nebraska and of the county wherein the petitioners reside, except that any person, otherwise qualified, may circulate one or more petitions outside of the county of his or her residence if he or she shall first have filed with the Secretary of State a bond, approved by the Attorney General, in the sum of five hundred dollars, conditioned that in the procuring of signatures to such petition or petitions he or she will conform to all the requirements of sections 32-702 to 32-713.... Any circulator circulating petitions under sections 32-702 to 32-713 shall not be hired and salaried for the express purpose of circulating petitions. A circulator may be paid for his or her expenses incident to circulation of petitions, such as meals, travel, and lodging. All signatures secured in a manner contrary to sections 32-702 to 32-713 shall not be counted. Clerical and technical errors in a petition shall be disregarded if the forms herein prescribed are substantially followed.
(Emphasis supplied.)
Among its provisions, § 32-713 specifies a petitioner's qualifications to sign an initiative petition, and sets out the crime of "false swearing" to a signature on an initiative petition:
Every person who is a qualified elector of the State of Nebraska may sign an initiative or a referendum petition of any measure upon which he or she is legally entitled to vote; Provided, that no elector shall be qualified to sign or circulate any initiative or referendum petition unless he or she shall be registered as an elector at the time of signing, or unless he or she shall file with the petition an affidavit setting forth the fact that he or she is a qualified elector.... The express purposes of the provisions of this section are to aid and assist the Secretary of State and the county clerk or election commissioner in determining the validity of signatures, the electoral qualifications of the signers, and sufficiency of the petition, and to prevent fraud, deception, and misrepresentation in the circulation and signing of a petition. Any person signing any name other than his or her own to any petition, or knowingly signing his or her name more than once for the same measure at...
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