State v. Radcliffe
| Decision Date | 17 June 1988 |
| Docket Number | No. 87-645,87-645 |
| Citation | 228 Neb. 868,424 N.W.2d 608 |
| Parties | STATE of Nebraska, Appellant, v. Walter H. RADCLIFFE, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Initiative and Referendum. The citizens of Nebraska are empowered by Neb. Const. art. III, § 2, to initiate constitutional amendments to be adopted by the people independently of the Legislature by petition signed by 10 percent of the electors of the state so distributed as to include 5 percent of the electors of each of two-fifths of the counties of the state.
2. Criminal Law: Statutes. The definition of a crime is controlled by the statute in effect at the time of the offense charged.
3. Constitutional Law: States: Due Process. U.S. Const. amend. I prohibits the Congress from making any law which abridges the freedom of speech. That guarantee is made applicable to the states by the requirement of U.S. Const. amend. XIV that no state deprive any person of liberty without due process of law.
4. Constitutional Law. The freedom of speech guaranteed by the first amendment embraces at least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.
5. Constitutional Law: Initiative and Referendum: Statutes. The circulation of an initiative petition involves the type of interactive communication concerning political change that is appropriately described as "core political speech"; accordingly, statutes limiting the power of the initiative are to be closely scrutinized and narrowly construed.
6. Constitutional Law: Statutes: Appeal and Error. The Nebraska Supreme Court will not pass upon the constitutionality of legislation absent a need to do so in order to properly dispose of an action.
Robert M. Spire, Atty. Gen., and William L. Howland, and Michael G. Heavican, Lancaster County Atty., and John A. Colborn, Lincoln, for appellant.
Alan E. Peterson of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellee.
As the result of an effort to initiate an amendment to the Constitution of this state so as to permit a state-run lottery, defendant-appellee, Walter H. Radcliffe, was charged with hiring and paying a salary to circulators of initiative petitions, once on June 26, 1986, and again on July 2, 1986, in violation of Neb.Rev.Stat. §§ 32-705 (Cum.Supp.1986) and 32-713 (Reissue 1984). The district court sustained Radcliffe's motion to quash the information on the ground, inter alia, that the portion of § 32-705 Radcliffe is charged with having violated abridges his freedom of speech and thus violates the first amendment to the U.S. Constitution. The plaintiff State excepted to the district court's ruling and, pursuant to leave, appealed to this court under the provisions of Neb.Rev.Stat. § 29-2315.01 (Reissue 1985). We overrule the State's exception.
The citizens of this state are empowered by Neb. Const. art. III, § 2, to initiate constitutional amendments to be "adopted by the people independently of the Legislature ... by petition ... signed by ten per cent of [the electors of the state] ... so distributed as to include five per cent of the electors of each of two-fifths of the counties of the state...." Neb. Const. art. III, § 4, provides that the "whole number of votes cast for Governor at the general election next preceding the filing of an initiative ... petition shall be the basis on which the number of signatures to such petition shall be computed." This section further outlines the method by which an initiated constitutional amendment is to be placed before the electorate for adoption or rejection.
The statutory language in question is part of the legislative scheme implementing the initiative process, which is mainly found at Neb.Rev.Stat. §§ 32-702 through 32-713.01 (Reissue 1984 & Cum.Supp.1986). The portion of § 32-705 (Cum.Supp.1986) at issue reads: "Any circulator circulating petitions under sections 32-702 to 32-713 shall not be hired and salaried for the express purpose of circulating petitions." Section 32-705 does, however, permit paying a circulator those "expenses incident to circulation of petitions, such as meals, travel, and lodging." Section 32-713 (Reissue 1984) provides that any person "willfully violating any provision of sections 32-702 to 32-713, shall be guilty of a Class IV felony." We recognize that by the enactment of 1988 Neb.Laws, L.B. 716, which becomes effective July 9, 1988, the Legislature will have changed certain portions of the language under consideration. Those changes, however, are not material to our inquiry, for not only does the enactment itself provide that the changes it makes shall not apply to prior offenses, which "shall be construed and punished" according to the law existing at the time of the offense, but the definition of a crime is controlled by the statute in effect at the time of the offense charged. See, State v. Tully, 226 Neb. 651, 413 N.W.2d 910 (1987); State v. Country, 194 Neb. 570, 234 N.W.2d 593 (1975); Berry v. Wolff, 193 Neb. 717, 228 N.W.2d 885 (1975); Debney v. State, 45 Neb. 856, 64 N.W. 446 (1895).
U.S. Const. amend. I provides in part that "Congress shall make no law ... abridging the freedom of speech...." That guarantee is made applicable to the states by the requirement of U.S. Const. amend. XIV that no state "deprive any person of ... liberty ... without due process of law...." Meyer v. Grant, --- U.S. ----, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988); First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); Wood v. Tesch, 222 Neb. 654, 386 N.W.2d 436 (1986).
The U.S. Supreme Court, in Meyer v. Grant, supra, recently reaffirmed that the freedom of speech guaranteed by the first amendment embraces at least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The Meyer Court went on to observe that the circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. Recognizing that a petition circulator need not necessarily persuade a potential petition signer that a particular proposal should prevail, the Court observed that, nonetheless, a circulator would, in order to obtain a signature, at least have to persuade a potential signer that the matter is one deserving of the public scrutiny and debate that would attend its consideration by the...
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