Loontjer v. Robinson

Wright, I.,

concurring.

There are two reasons why the initiative petition at issue is not “legally sufficient” to place the measure before the voters. The first reason is that the petition does not contain a sworn statement listing the names and addresses of its sponsors. Therefore, I concur in the result reached by the majority. However, I write separately to address the second reason, which is equally important if not more important.

In the case at bar, the issue is whether the initiative petition is legally sufficient. Neb. Rev. Stat. § 32-1412(2) (Reissue 1998) provides in part:

On a showing that an initiative or referendum petition is not legally sufficient, the court, on the application of any resident, may enjoin the Secretary of State and all other officers from certifying or printing on the official ballot for the next general election the ballot title and number of such measure.

The question presented is whether this court may examine the initiative petition for compliance with Neb. Const, art. Ill, § 2, to determine the legal sufficiency of the measure preelection or whether the court must wait until the measure has been voted upon and passed by the voters. This question boils down to whether article III, § 2, is a procedural requirement for initiative petitions. I conclude that it is.

Article III, § 2, as amended in 1998 provides in part: “Initiative measures shall contain only one subject.” The primary purpose of the single subject rule is to prevent “log-rolling,” the practice of combining dissimilar propositions into one proposed amendment “so that voters must vote for or against the whole package even though they would have voted differently had the propositions been submitted separately.” See Tilson v. Mofford, 153 Ariz. 468, *921471, 737 P.2d 1367, 1370 (1987). The rule is designed to ensure that decisions made at the polls represent the free and mature judgment of the electors, so submitted that they cannot be constrained to adopt measures of which in reality they disapprove, in order to secure the enactment of others they earnestly desire. See Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934). “[The single subject rule] prevents those who propose initiatives from confusing or deceiving the voters by inserting unrelated provisions in an initiative proposal and ‘hiding them’ from the voters.” Slayton v. Shumway, 166 Ariz. 87, 90, 800 P.2d 590, 593 (1990). “It prevents two minority groups from combining different proposals — and thus their votes — to obtain a majority in favor of the joint proposal when neither standing alone could achieve such a majority.” Id. “[The single subject rule] serves to ensure that each legislative proposal depends upon its own merits for passage and protects against fraud and surprise occasioned by the inadvertent passage of a surreptitious provision ‘coiled up in the folds’ of a complex bill.” In re Ballot Title 2001-02 No. 43, 46 P.3d 438, 440 (Colo. 2002) (general discussion of reasons for single subject rule).

Prior to obtaining any signatures on an initiative petition, a statement of the object of the petition and the text of the measure shall be filed with the Secretary of State together with a sworn statement containing the names and street addresses of every person, corporation, or association sponsoring the petition. Neb. Rev. Stat. § 32-1405 (Reissue 1998). Section 32-1405 deals with the form of the petition and the technical requirements for assessing the legal sufficiency of an initiative.

There are both constitutional and statutory prerequisites involved in the initiative process. The Nebraska Constitution requires that an initiative must contain only one subject. Clearly, an initiative that does not comply with the requirements of the constitution cannot and should not be placed before the voters. The Secretary of State’s duties in the review of initiative petitions are ministerial in nature. Duggan v. Beermann, 249 Neb. 411, 544 N.W.2d 68 (1996). See, also, State ex rel. Labedz v. Beermann, 229 Neb. 657, 428 N.W.2d 608 (1988). The Secretary of State is required to perform promptly all the ministerial duties imposed by law. State ex rel. Brant v. Beermann, 217 Neb. 632, 350 N.W.2d 18 (1984). In State ex rel. Brant, we recognized that the *922Secretary of State may refuse to place on the ballot proposed petitions that are facially invalid or unconstitutional.

Prior to the 1998 amendment of article III, § 2, the Secretary of State was authorized to pass upon the facial invalidity of a proposed initiative petition. Now, the constitution requires that initiative petitions must contain only one subject. A petition which contains more than one subject is facially invalid because it does not meet the constitutional requirement. In order for an initiative petition to be legally sufficient, it must not only comply with the technical requirements of § 32-1405, but it must also comply with the constitutional requirements of article III, § 2.

I believe the amendment to article III, § 2, was intended by the Legislature to protect voters in regard to the manner in which initiative petitions seeking to amend the state Constitution may be presented. Constitutional amendments are not to be proposed as package deals which contain multifaceted proposals.

Neb. Const, art. XVI, § 1, requires that legislatively proposed constitutional amendments must be presented to the voters such that they can vote separately on each amendment. The purpose of article XVI, § 1, is to prevent logrolling. Article III, § 2, simply applies this principle to constitutional amendments by initiative petition. An initiative petition proposing to amend the state Constitution cannot contain multisubject proposals which require that the voters adopt all the proposals in order to pass the amendment.

As argued by Loontjer, the Nebraska Constitution has long required that statutory measures proposed by initiatives follow the same “constitutional limitations as to the scope and subject matter” as are applicable to statutes enacted by the Legislature. See Neb. Const, art. Ill, § 2. This includes the single subject requirement for statutes set forth in Neb. Const, art. Ill, § 14. Prior to 1998, therefore, legislatively proposed constitutional amendments were subject to a different constitutional provision than were statutory proposals.

The appellants’ argument that the standards for statutory proposals must now be applied to constitutional amendments by initiative petition has no historical basis. Article XVI, § 1, of the Nebraska Constitution requires that legislatively proposed constitutional amendments be presented to the voters in a manner *923that allows the voters to vote separately on each amendment. I agree with Loontjer’s argument that the 1998 amendment was intended to emulate the requirements of article XVI, § 1, and not the single subject standards for statutes. As a result, the 1998 amendment providing that “[initiative measures shall contain only one subject” is intended to prevent logrolling.

The requirements of article III, § 2, are meant to afford protection to the public at the time the petition is signed by requiring that only one subject be presented in the petition. Also, by requiring a single subject when the initiative petition seeks to amend the constitution, the public is not forced to vote for several measures in order to pass a specific measure which is contained within the package.

The district court concluded that the standard for determining whether the petition complied with the single subject rule was that each of its provisions must have a natural and necessary connection with each other and, taken as a whole, with the general subject. The district court relied on Munch v. Tusa, 140 Neb. 457, 463, 300 N.W. 385, 389 (1941), in which this court stated:

“The rule has been laid down that a constitutional amendment which embraces several subjects, all of which are germane (near or akin) to the general subject of the amendment, will, under such a requirement, be upheld as valid and may be submitted to the people as a single proposition.” ... In State [ex rel. Fargo] v. Wetz, [40 N.D. 299, 168 N.W. 835 (1918)], it was said that the controlling consideration in determining the singleness of an amendment is its singleness of purpose and the relationship of the details to the general subject.. . .
The rule followed by a majority of American jurisdictions is to the effect that where the limits of a proposed law, having natural and necessary connection with each other, and, together, are a part of one general subject, the proposal is a single and not a dual proposition.

(Emphasis supplied.) (Citations omitted.)

In my opinion, the foundation for this requirement is to protect the voter when the voting public is asked to amend its constitution and to clearly define the measure for which the public is voting.

*924In the case at bar, the public is being asked to amend the constitution to permit the use of video slot machines as a form of gambling in Nebraska. In my opinion, the petition contains subjects that do not have a natural and necessary connection with one another. For example, tuition credits to students have no natural and necessary connection with the legalization of video slot machines. Also, the Legislature’s taxing authority is not part of the general subject of gambling. Neb. Const, art. VIII, § 1, provides: “The necessary revenue of the state and its governmental subdivisions shall be raised by taxation in such manner as the Legislature may direct.” In effect, the initiative petition before us would amend article VIII, § 1.

In the case at bar, the district court specifically found that the initiative petition did not comply with the single subject requirement. The court determined that “[a] myriad of the provisions of the Initiative Petition For Local Option Gaming have no natural or necessary connection with each other and/or with the general subject of gambling.”

As the majority has pointed out, “ ‘ “ ‘[t]he constitutional provision authorizing the legislature to enact laws to facilitate the operation of the initiative power means that it may enact reasonable legislation to prevent fraud or to render intelligible the purpose of the proposed law or constitutional amendment.. .” See State ex rel. Stenberg v. Moore, 258 Neb. 199, 211, 602 N.W.2d 465, 474 (1999). In Duggan v. Beermann, 245 Neb. 907, 915, 515 N.W.2d 788, 794 (1994), we stated: “[I]n adopting the Constitution, the people have imposed upon themselves limitations on their ability to amend this fundamental law.” Now, we have a constitutional amendment requiring a single subject for initiative petitions, and the same reasoning would apply to the constitutional requirement in article III, § 2. In order for an initiative petition to be placed before the voters, there is a procedural limitation that the petition contain only one subject. The objective of this requirement would be frustrated if this issue is not adjudicated preelection.

The appellants argue that our decision in Duggan v. Beermann, 249 Neb. 411, 544 N.W.2d 68 (1996), prevents this court from deciding the constitutionality of an initiative measure before it has been approved by voters. In my opinion, Duggan is readily *925distinguishable. In Duggan, the district court declined to address the constitutionality of the initiative petition because the measure had not been adopted and an opinion on its constitutionality would be advisory. We held, inter alia, that the district court had correctly declined to enter an advisory opinion or any declaratory judgment unless and until the initiative measure was adopted. We stated that “[t]o the degree that appellants sought a declaration that Measure #408, if adopted, would enact amendments which violated the U.S. or the Nebraska Constitution, appellants were seeking an advisory opinion.” Id. at 424, 544 N.W.2d at 77.

Duggan dealt, in part, with an attempt to litigate the substantive constitutionality of the measure before it was adopted. That is not the issue before us. Here, we are not asked to decide the substantive constitutional defects of the petition, but, rather, whether it complies with the statutory and constitutional prerequisites for placement before the voters. The issue is the legal sufficiency of the initiative petition under § 32-1405 and article III, § 2, of the Nebraska Constitution. The determination of whether the measure contains more than one subject is a justiciable issue that must be decided before the initiative can be submitted to the voters.

The Supreme Court of California in Senate of the State of Cal. v. Jones, 21 Cal. 4th 1142, 988 P.2d 1089, 90 Cal. Rptr. 2d 810 (1999), set forth why a determination concerning the single subject provision in California’s constitution was ripe for adjudication before the measure was submitted to the voters.

[Djeferring a decision until after the election not only will defeat the constitutionally contemplated procedure ... but may contribute to an increasing cynicism on the part of the electorate with respect to the efficacy of the initiative process.
... [“ ‘ “[If an initiative measure] is facially defective in its entirety, it is ‘wholly unjustified to allow voters to give their time, thought, and deliberation to the question of the desirability of the legislation as to which they are to cast their ballots, and thereafter, if their vote be in the affirmative, confront them with a judicial decree that their action was in vain... .’’’’[Citations.]”].

Id. at 1154-55, 988 P.2d at 1096-97, 90 Cal. Rptr. 2d at 819.

*926The Supreme Court of Missouri in Missourians to Protect Init. Proc. v. Blunt, 799 S.W.2d 824, 828 (Mo. 1990), held that

[a]ny controversy as to whether the prerequisites of [the one subject requirement] have been met is ripe for judicial determination when the Secretary of State makes a decision to submit, or refuse to submit, an initiative issue to the voters. At that point, a judicial opinion as to whether the constitutional requirements have been met is no longer hypothetical or advisory.

Other courts have also considered the appropriateness of the single subject requirement prior to submission of an initiative to the voters. Like Nebraska, Arizona has refused to consider the substantive constitutionality of initiative petitions prior to adoption by the voters. See State v. Osborn, 16 Ariz. 247, 143 P. 117 (1914). However, in Slayton v. Shumway, 166 Ariz. 87, 800 P.2d 590 (1990), the court considered an action to enjoin the Secretary of State from certifying and putting an initiative measure on the ballot. The parties alleged that the measure was not legally sufficient because it violated the single subject rule. The court examined the petition and concluded it did not violate the single subject requirement of the state constitution. See, also, Korte v. Bayless, 199 Ariz. 173, 16 P.3d 200 (2001) (action seeking to enjoin Secretary of State from placing initiative petition on ballot due to alleged violation of single subject rule).

The Colorado Supreme Court also considered preelection challenges under the state’s single subject rule. In In re Ballot Title 2001-02 No. 43, 46 P.3d 438, 443 (Colo. 2002), the court discussed the preelection application of Colorado’s single subject rule: “Our role is limited. We may not address the merits of a proposed initiative or suggest how an initiative might be applied if enacted; however, we must sufficiently examine an initiative to determine whether or not the constitutional prohibition against initiative proposals containing multiple subjects has been violated.”

It makes sense to decide whether an initiative petition complies with the single subject rule before the measure has been submitted to the voters. One of the functions of the judicial branch is to ensure that the people’s right to bring an initiative petition is properly exercised. “Expressing the written will of the people, the *927Constitution . . . demands that initiative supporters exercise due care and caution appropriate to the significance of that task.” Duggan v. Beermann, 249 Neb. 411, 435, 544 N.W.2d 68, 82 (1996). A prerequisite to the exercise of the initiative power is set forth in article III, § 2, of the Nebraska Constitution. Had the measure complied with the technical requirements set forth in § 32-1405, the issue of compliance with article III, § 2, would still have to be decided. If the measure were adopted by the voters, they would not have been given the protection required by the constitution that such initiatives contain only one subject.

Thus, I conclude that an initiative petition which on its face contains more than one subject cannot legally be placed upon the ballot for consideration by the voters. The necessity for compliance with this requirement before the measure is voted upon is obvious. If a measure is adopted by the people and then is rejected by the court on the procedural ground that it did not comply with the constitutional requirement of only one subject, the public interest is not well served. The fact that an initiative petition on its face contains more than one subject makes it ripe for judicial determination.

Gerrard, J., joins in this concurrence.