REQUESTED BY: Dear Senator Keyes:
You have asked for our opinion on whether the Legislature could entirely repeal LB 2 or whether less drastic changes could be made. In your letter you indicate that certain political subdivisions have adopted budget limitations under LB 2, now codified as section 77-3401 through section 77-3411. Pursuant to these provisions at least two subdivisions of government have held elections at which a zero budget limitation has been imposed.
We assume that your question is, what effect would follow if LB 2 were in its entirety repealed. Prior to the adoption of LB 2 by the Legislature there was no specific statutory authority authorizing the imposition of a lid on any governmental subdivision. LB 2, however, authorizes a limitation different from that which was subsequently enacted by the Legislature generally limiting budget increases for a governmental subdivision. This limitation could be imposed by a vote of the people. The question is, if LB 2 is repealed, what happens in those jurisdictions that have adopted different budget limitations than those provided by law. Arguably, the Legislature has the authority to enact, repeal, amend and otherwise adopt laws for the government of local subdivisions. The local subdivisions exist by virtue of legislative action and are empowered to do certain things pursuant to statutes adopted by the Legislature. When the Legislature repeals statutes authorizing certain actions, the authority to take those actions generally also ceases to exist.
While our research has not been able to uncover any case law which indicates the effect of the repeal of a law requiring the vote of the people for its effectuation, it is our belief that if such law is repealed then actions taken under that law would also end.
The difficulty with this conclusion is that section 77-3410 provides:
"Any limitation placed on budgets pursuant to sections 77-3401 to 77-3411 shall remain in effect until a majority of the registered voters authorized to vote for the members of the governing body of such political subdivision vote to alter, amend, or revoke such budget limitation at a primary or special election. Such elections shall be called and conducted in the same manner as elections to place a limitation on budgets are called and conducted pursuant to sections 77-3401 to 77-3411."
Under this section the single vote of the people establishes a budget that will continue until a subsequent election modifies that vote. If you repeal the sections which authorize the modification of a limitation previously imposed, you might also thereby end the authority of any political subdivision to ever remove such a budget limitation. Conceivably there would be no authority to hold an election to remove the limitation imposed upon the budget. However, there are also arguments for the proposition that if the act itself is repealed, then the budget limitation is repealed and no longer exists.
We cannot with certainty tell you which result would occur. There is simply no law available upon which we can rely. This appears to be a unique situation. Conceivably, the Legislature in repealing such an action could also enact a law that would eliminate existing budget limitations. That might be sufficient to cure the problems that are pointed out earlier in this letter. However, once again, this is a matter upon which no sure guidance can be had. In any event, any legislation drafted which seeks this result as it ends should be carefully researched and very carefully written.
In the second part of your question you allude to less drastic measures. While we are not sure what less drastic measures you refer to, it does seem clear to us that the Legislature could, for instance, reduce the required majority for the removal of a lid from a majority of all registered voters to a majority of those voting in the election. We see no constitutional or statutory problems with such an amendment. Several other possibilities might exist but we would decline to speculate on those at this time. Should you have a specific amendment upon which you would like our advice, please feel free to contact us.