Jim Jones v. John Gale , 470 F.3d 1261 ( 2006 )


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  •                    United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 06-1308
    ___________
    Jim Jones; Terrence M. Schumacher;      *
    Shad Dahlgren; Harold G. Rickertsen;    *
    Todd Ehler; Robert E. Beck, III,        *
    *
    Appellees,                 *
    *
    v.                               *
    *   Appeal from the United States
    John Gale, in his official capacity     *   District Court for the
    as Secretary of State of Nebraska;      *   District of Nebraska.
    Jon Bruning, in his official capacity   *
    as Attorney General of Nebraska,        *
    *
    Appellants.                *
    *
    Organization for Competitive Markets; *
    R-Calf USA; Oregon Livestock            *
    Producers Association; Spokane County *
    Cattle Producers; Icon; The Independent *
    Beef Association of North Dakota;       *
    Montana Cattleman's Association;        *
    Nevada Livestock Association; State     *
    of Minnesota; State of Iowa; State of   *
    Missouri; State of North Dakota; State *
    of West Virginia; Nebraska Farmers      *
    Union; The Center for Rural Affairs;    *
    The Nebraska Grange; Women              *
    Involved in Farm Economics;             *
    The Nebraska Catholic Conference;       *
    The American Corn Growers of            *
    Nebraska; Nebraska Appleseed Center *
    for Law in the Public Interest;         *
    Sierra Club; The Great Plains             *
    Environmental Law Center; Nebraska        *
    Environmental Action Coalition;           *
    Michael Jacobson; Nebraska League         *
    of Rural Voters; Nebraskans for Peace;    *
    National Farmers Union; National          *
    Family Farm Coalition; American Corn      *
    Growers; Minnesota Farmers Union;         *
    Land Stewardship Project; North           *
    Dakota Farmers Union; Dakota              *
    Resource Council; South Dakota            *
    Farmers Union; Dakota Rural Action;       *
    Iowa Farmers Union; Iowa Citizens         *
    for Community Improvement; Missouri       *
    Farmers Union; Missouri Rural Crisis      *
    Center; AR Farmers Union; Campaign        *
    For Family Farms; Western                 *
    Organization of Resource Councils;        *
    Federation of Southern Cooperatives;      *
    Illinois Farmers Union; Illinois          *
    Stewardship Alliance; IN Farmers          *
    Union; Citizens Action Coalition          *
    of Indiana; Powder River Basin            *
    Resource Council; KS Farmers Union;       *
    WI Farmers Union; OH Farmers Union;       *
    MI Farmers Union; Pennsylvania            *
    Farmers Union; Rocky Mountain             *
    Farmers Union; Montana Farmers            *
    Union; Utah Farmers Union; Texas          *
    Farmers Union; Alaska Farmers Union;      *
    Oregon Farmers Union; WA Farmers          *
    Union; California Farmers Union,          *
    *
    Amici on behalf               *
    of Appellants.                *
    *
    -2-
    Nebraska Bankers Association;         *
    Nebraska Chamber of Commerce and      *
    Industry, Inc.; The Nebraska Realtors *
    Association; South Dakota Farm        *
    Bureau,                               *
    *
    Amici on Behalf of Appellees.   *
    *
    United States of America,             *
    *
    Amicus on Behalf of Appellees. *
    ___________
    Submitted: September 28, 2006
    Filed: December 13, 2006
    ___________
    Before ARNOLD, BYE, and MELLOY, Circuit Judges.
    ___________
    ARNOLD, Circuit Judge.
    The plaintiffs, six people who own various interests in Nebraska farm and ranch
    land operations, filed this action against Nebraska's secretary of state and attorney
    general in their official capacities (State Officials). The plaintiffs claimed that
    Initiative 300, which voters adopted as part of the state constitution in 1982, see Neb.
    Const. art. XII, § 8, violates the commerce clause, privileges and immunities clause,
    and equal protection clause of the United States Constitution and the Americans with
    Disabilities Act (ADA). All parties moved for summary judgment. The district court1
    granted summary judgment to the plaintiffs on their commerce clause and ADA
    claims, and granted summary judgment to the State Officials on the remaining claims.
    The State Officials appeal, and we affirm the district court's judgment that the
    1
    The Honorable Laurie Smith Camp, United States District Judge for the
    District of Nebraska.
    -3-
    amendment based on Initiative 300 is unconstitutional because it violates the dormant
    commerce clause.
    I.
    Initiative 300 prohibits corporations or syndicates (non-family-owned limited
    partnerships) from acquiring an interest in "real estate used for farming or ranching
    in [Nebraska]" or "engag[ing] in farming or ranching," with certain exceptions. See
    Neb. Const. art. XII, § 8. The initiative originated as a constitutional amendment
    proposed through the initiative process and appeared as a ballot question on
    Nebraska's 1982 general election ballot. The Nebraska Attorney General prepared a
    ballot title and explanatory statement for Initiative 300. See Neb. Stat. § 32-1410(1).
    The title read: "Shall a constitutional prohibition be created prohibiting ownership of
    Nebraska farm or ranch land by any corporation, domestic or foreign, which is not a
    Nebraska family farm corporation ... ?" An explanatory statement defines the effect
    of a vote for and against a measure. 
    Id. The explanatory
    statement presented to
    Nebraska voters for Initiative 300 read: "A vote FOR will create a constitutional
    prohibition against further purchase of Nebraska farm and ranch lands by any
    corporation or syndicate other than a Nebraska family farm corporation. A vote
    AGAINST will reject such a constitutional restriction on ownership of Nebraska farm
    and ranch land." The voters adopted Initiative 300, and it became part of the Nebraska
    constitution upon the issuance of a proclamation by the governor in 1982.
    The Initiative defines a "family farm or ranch corporation," which is
    specifically excepted from the initiative's restrictions, as "a corporation engaged in
    farming or ranching or the ownership of agricultural land, in which the majority of the
    voting stock is held by members of a family ... at least one of whom is a person
    residing on or actively engaged in the day to day labor and management of the farm
    or ranch." Neb. Const. art. XII, § 8. In addition, an exemption from the corporate
    farming ban is provided, inter alia, to former "family farm corporations" for a period
    -4-
    of fifty years after they cease to meet the criteria for that designation, provided that
    majority ownership of the corporation remains within the family. 
    Id. II. The
    State Officials contend that none of the plaintiffs had standing to bring the
    commerce clause claim and therefore the district court erred in concluding that it had
    jurisdiction. A plaintiff has the burden of establishing subject matter jurisdiction,
    Hoekel v. Plumbing Planning Corp., 
    20 F.3d 839
    , 840 (8th Cir. 1994) (per curiam),
    cert. denied, 
    513 U.S. 974
    (1994), for which standing is a prerequisite, Faibisch v.
    University of Minn., 
    304 F.3d 797
    , 801 (8th Cir. 2002). To establish standing, a
    plaintiff is required to show that he or she had " 'suffered an injury in fact, meaning
    that the injury is (a) concrete and particularized and (b) actual or imminent, not
    conjectural or hypothetical.' Second, the injury must be traceable to the defendant's
    challenged action. Third, it must be 'likely' rather than 'speculative' that a favorable
    decision will redress the injury." South Dakota Farm Bureau, Inc. v. Hazeltine,
    
    340 F.3d 583
    , 591 (8th Cir. 2003) (quoting Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560-61 (1992)), cert. denied, 
    541 U.S. 1037
    (2004).
    We review the district court's conclusion that the plaintiffs had standing de
    novo. St. Paul Area Chamber of Commerce v. Gaertner, 
    439 F.3d 481
    , 484 (8th Cir.
    2006). Although the district court concluded that all of the plaintiffs had standing to
    bring the commerce clause claim, we have said previously that "where one plaintiff
    establishes standing to sue, the standing of other plaintiffs is immaterial" to
    jurisdiction. National Wildlife Fed'n v. Agricultural Stabilization & Conservation
    Serv., 
    955 F.2d 1199
    , 1203 (8th Cir. 1992) (internal quotation marks omitted) (citing
    Bowen v. Kendrick, 
    487 U.S. 589
    , 620 n.15 (1988)).
    Plaintiff Terrence Schumacher, a resident of Boulder, Colorado, has an
    ownership interest in Nebraska farmland in five counties. Neither he nor any of his
    relatives reside on his farmland and he does not live close enough to the land to
    -5-
    perform the day-to-day labor and manage it. Mr. Schumacher would like to transfer
    his farmland to a limited liability entity, which would, inter alia, allow for improved
    fiscal planning and operational management of the farmland as an operating unit and
    provide more favorable options for estate planning. Initiative 300 precludes
    Mr. Schumacher from creating a limited liability farm operation because he does not
    meet the conditions of the family farm exemption, and as a result he has suffered and
    continues to suffer economic loss based on reduced fiscal and operational
    management efficiencies, marketing opportunities, and borrowing power, as well as
    increased administration expenses and federal estate taxes. Because Mr. Schumacher
    cannot qualify for the family farm exemption, he is exposed to personal liability for
    the debts, obligations, contracts, and torts related to his Nebraska farmland.
    The State Officials acknowledge that Mr. Schumacher may not purchase
    farmland on a limited liability basis unless he or a member of his family resides on the
    farmland or is engaged in the farm's day-to-day labor and management. But they
    argue that he nevertheless lacks standing because the family-farm requirements apply
    to everyone and thus do not unduly burden Mr. Schumacher's interests. We think,
    however, that the question of interstate commerce 'burdens' pertains to the merits of
    Mr. Schumacher's claim and is "analytically distinct from the 'injury-in-fact'
    determination that is central to standing." Adams v. Watson, 
    10 F.3d 915
    , 925 n.16
    (1st Cir. 1993).
    Robert Beck III, another plaintiff, resides in rural Kearney, Nebraska, where he
    owns a cattle feedlot that provides for the daily care and feeding of cattle owned by
    his customers, many of whom live outside of Nebraska. Mr. Beck cannot contract
    with non-exempt out-of-state corporate entities for the purpose of raising and feeding
    livestock for slaughter. Mr. Beck alleges that as a result, he has lost business, income,
    and borrowing power. He further alleges that Initiative 300 has prevented him from
    gaining unfettered access to the national cattle market, and thereby reduced his
    competitiveness and ability to gain new customers resulting in economic loss.
    -6-
    In addition, Mr. Beck's access to working capital from out-of-state corporations is
    restricted because Initiative 300 prohibits non-exempt entities that provide equity in
    the form of ownership of cattle from feeding cattle at Mr. Beck's feedlot. The
    initiative prohibits him from freely changing ownership of his commercial cattle
    feeding operations and limits his ability to pool assets and resources with other
    unrelated Nebraska farmers and out-of-state corporations to acquire more land and
    personal assets for future development of his cattle operation. Finally, Initiative 300
    prevents Mr. Beck from establishing succession plans that would allow him to transfer
    ownership gradually to employees who provide the day-to-day labor while he
    continues to manage the operation.
    The State Officials acknowledge that under 
    Hazeltine, 340 F.3d at 392
    , a
    plaintiff who does substantial business with out-of-state corporations and would suffer
    imminent business losses as a result of the challenged law has standing to bring a
    commerce clause claim. They argue, however, that Mr. Beck lacks standing because
    he does not have "actual contracts with out-of-state corporations" and therefore did
    not suffer an injury in fact.
    But we agree with the district court that the predicaments of
    Messrs. Schumacher and Beck are comparable to those of the plaintiffs in Hazeltine,
    who we concluded had standing to challenge an amendment to the South Dakota
    Constitution that prohibited corporations and syndicates from holding land in the state.
    See 
    Hazeltine, 340 F.3d at 591-92
    . We also think that the plaintiffs have standing to
    challenge the constitutionality of a law that has a direct negative effect on their
    " 'borrowing power, financial strength, and fiscal planning,' " see 
    Hazeltine, 340 F.3d at 592
    (quoting Clinton v. City of New York, 
    524 U.S. 417
    , 431 (1998). We do not
    believe that Mr. Beck was required to show that he had contracted with an out-of-state
    corporation in order to have standing. Both Mr. Schumacher and Mr. Beck explained
    how Initiative 300 had negatively affected their ability to earn income, borrow, and
    plan for their financial future. Mr. Schumacher's asserted inability to dispose of his
    -7-
    land as he wishes weakens his financial position in precisely the way that meets the
    conditions we set out in Hazeltine and that the Supreme Court established in Lujan:
    His claim involves a concrete and actual injury that can be traced back to the State
    Officials, and it is entirely likely that a favorable ruling will redress the injury.
    Because Messrs. Schumacher and Beck have standing, the district court had
    jurisdiction over the case.
    III.
    We turn now to the question of whether Initiative 300 violates the dormant
    commerce clause of the United States Constitution. Where the relevant facts are not
    in dispute, we review de novo the question of whether a state constitutional provision
    violates the commerce clause. See R & M Oil & Supply, Inc. v. Saunders, 
    307 F.3d 731
    , 734 (8th Cir. 2002).
    The dormant commerce clause prohibits states from enacting laws that
    "discriminate against or unduly burden interstate commerce." 
    Hazeltine, 340 F.3d at 592
    -93. As we explained in Hazeltine, when determining whether a law violates the
    dormant commerce clause, we ask first "whether the challenged law discriminates
    against interstate commerce. Discrimination in this context refers to 'differential
    treatment of in-state and out-of-state economic interests that benefits the former and
    burdens the latter.' " 
    Id. at 593.
    (quoting Oregon Waste Sys., Inc. v. Department of
    Envtl. Quality, 
    511 U.S. 93
    , 99 (1994)). A law "overtly discriminates" against
    interstate commerce if it is discriminatory on its face, if it has a discriminatory
    purpose, or if it has a discriminatory effect. U & I Sanitation v. City of Columbus, 
    205 F.3d 1063
    , 1067 (8th Cir. 2000).
    A.
    We consider first whether Initiative 300 is discriminatory on its face. The State
    Officials argue that because Initiative 300 does not expressly prohibit the owning of
    agricultural land by out-of-state citizens and does not exclude solely out-of-state
    -8-
    corporations, it cannot be interpreted to discriminate facially against interstate
    commerce. We do not think that an interstate-commerce claim is precluded by the
    absence of an express prohibition on non-resident ownership or the fact that some
    Nebraska corporations (those that are not "family farm corporations") may suffer a
    negative impact under Initiative 300, see C & A Carbone, Inc. v. Town of Clarkstown,
    
    511 U.S. 383
    , 391-92 (1994). We conclude instead that Initiative 300 is facially
    discriminatory because its prohibition against farming by corporations and syndicates
    does not apply to family farm corporations or limited partnerships in which at least
    one family member resides on or engages in the daily labor and management of the
    farm. We agree with the district court's holding that "Initiative 300 on its face,
    therefore, favors Nebraska residents, and people who are in such close proximity to
    Nebraska farms and ranches that a daily commute is physically and economically
    feasible for them." 
    Jones, 405 F. Supp. 2d at 1081
    .
    The State Officials maintain that this is an incorrect interpretation of Initiative
    300. They argue that the law does not require the majority shareholder to live or work
    on farmland in Nebraska to qualify for the exception; they assert that a Colorado
    family farm corporation, for example, could operate on land in Nebraska as long as
    its majority shareholder or one of his or her family members lived or worked at the
    location of the corporation's Colorado farm. This argument is meritless. Although,
    as the officials observe, "[i]f a law is susceptible of a reasonable interpretation which
    supports its constitutionality, the court must accord the law that meaning," Planned
    Parenthood of Minnesota v. State of Minnesota, 
    910 F.2d 479
    , 482 (8th Cir. 1990),
    we do not believe that the interpretation offered by the State Officials is reasonable.
    Instead, their proposed interpretation of the family farm exemption, which attempts
    to avoid the interstate commerce problem, is untenable because it conflicts with the
    plain language of Initiative 300, contradicts the ballot language presented to voters,
    and is inconsistent with the Nebraska Supreme Court's reading of the law.
    -9-
    We give the words of Initiative 300 their most natural and obvious meaning.
    See Pig Pro Nonstock Coop. v. Moore, 
    253 Neb. 72
    , 83, 
    568 N.W.2d 217
    , 224 (1997);
    see also Planned Parenthood of Mid-Missouri & Eastern Kansas, Inc. v. Dempsey,
    
    167 F.3d 458
    , 461 (8th Cir. 1999). As plaintiffs point out, the initiative regulates the
    ownership of land "in this state" and requires residing on or engaging in the daily
    labor and management "of the farm or ranch." Neb. Const. art. XII, § 8 (emphases
    added). The focus of the text is thus on activities within the state of Nebraska, and the
    phrase "of the farm or ranch" can only refer to a farm or ranch in Nebraska. Despite
    the State Officials' heroic effort to develop a plausible alternative construction, we
    think it rather plain that Initiative 300 requires residing or working on a Nebraska
    farm.
    Our reading acquires further support from the ballot language that accompanied
    the text when Initiative 300 was voted on. As we have already said, the ballot stated
    that the amendment's purpose was to prohibit further purchases of agricultural land
    "by any corporation ... other than ... a Nebraska family farm corporation." 
    Jones, 405 F. Supp. 2d at 1073
    (emphasis added). The words "a Nebraska family farm
    corporation" cannot reasonably be read to mean that family farm corporations in other
    states could qualify.
    The Nebraska Supreme Court's interpretation of Initiative 300 also undermines
    the State Officials' proposed construction. The court stated that "the plain language
    of Article XII § 8" prohibits "absentee ownership and operation of farm and ranch
    land by a corporate entity." Pig 
    Pro., 253 Neb. at 91
    , 568 N.W.2d at 228. If the
    initiative meant to prohibit absentee ownership, it would manifestly defeat its purpose
    to interpret it to mean that a corporation located in some other state would be allowed
    to operate farmland in Nebraska.
    The State Officials quote Dempsey for the proposition that when "an otherwise
    acceptable construction of a statute would raise serious constitutional problems, the
    -10-
    Court will construe the statute to avoid such problems." See 
    Dempsey, 167 F.3d at 461
    (internal quotations and citations omitted). But the officials are engaging in
    selective quotation. In Dempsey, we specifically held that we always begin statutory
    interpretation with the "plain language of the statute itself" and that we will construe
    a statute to avoid constitutional problems only if its "language is ambiguous" and such
    a construction does not plainly contradict the "legislative intent." 
    Id. As we
    have
    said, the language of Initiative 300 plainly requires residing or working on a Nebraska
    farm; thus there is no ambiguity to construe. We note, moreover, that even if there
    were an ambiguity, we would reject the State Officials' proposed interpretation
    because it would frustrate the voters' intent, which we address more fully below.
    Thus, we read Initiative 300 as the district court did and hold that Initiative 300
    is discriminatory on its face because it affords "differential treatment of in-state and
    out-of-state economic interests that benefits the former and burdens the latter."
    
    Hazeltine, 340 F.3d at 593
    (internal citations omitted).
    B.
    Although we have already determined based on a facial review that Initiative
    300 is discriminatory, we agree with the district court that there is another,
    independent reason for concluding that it burdens out-of-state interests: The initiative
    has a discriminatory intent. Cf. 
    Hazeltine, 340 F.3d at 593
    . As the State Officials
    point out, the Nebraska Supreme Court has held that the intent of the voters in
    adopting an initiative amendment to the state constitution must be determined from
    the words of the amendment itself. See Pig 
    Pro, 253 Neb. at 82
    , N.W.2d at 223-24.
    But the State Officials admit that we are not bound by the Nebraska Supreme Court's
    precedent on this point. Rather, as we have held previously, we "look to direct and
    indirect evidence to determine whether a state adopted a statute with a discriminatory
    purpose," which may include evidence in the form of "statements by lawmakers."
    Smithfield Foods, Inc. v. Miller, 
    367 F.3d 1061
    , 1065 (8th Cir. 2004). In determining
    the purpose of an initiative amendment in 
    Hazeltine, 340 F.3d at 593
    -96, we relied on
    -11-
    the statements and conduct of the amendment's drafters. And in SDDS, Inc. v. South
    Dakota, 
    47 F.3d 263
    , 268 (8th Cir. 1995), we considered a pamphlet prepared for
    voters by the state attorney general in determining whether a referendum had a
    discriminatory intent.
    The text of Initiative 300 and the ballot title reveal its discriminatory purpose.
    Under Nebraska law, a "ballot title shall express the purpose of the measure"
    submitted to the voters, Neb. Stat. § 32-1410(1), and here the ballot title told voters
    that Initiative 300 would "prohibit[] ownership of Nebraska farm or ranch land by any
    corporation, domestic or foreign, which is not a Nebraska family farm corporation."
    We agree with the district court that the "ballot title, and the language of Initiative 300
    defining limited-liability-entity exemptions for family farms and ranches, clearly
    indicate that people living and working in Nebraska, and their families, will be given
    ... favored treatment." 
    Jones, 405 F. Supp. 2d at 1080
    . The manifest purpose of
    Initiative 300 therefore was to differentiate, or discriminate, between family farm
    corporations located in Nebraska as opposed to those located elsewhere.
    Further, while we deem it unnecessary to discuss in detail the history preceding
    the adoption of Initiative 300, we believe that that history bolsters the plaintiffs'
    contention that discriminatory intent motivated voters to adopt Initiative 300. To
    name but one example, television advertisements that supporters of Initiative 300
    produced before its adoption concluded by stating: "Let's send a message to those rich
    out-of-state corporations. Our land's not for sale, and neither is our vote. Vote for
    Initiative 300." It is clear beyond cavil that these ads bristle with an animus against
    out-of-state corporations.
    C.
    We have concluded that Initiative 300 discriminates against out-of-state entities
    both on its face and because of its discriminatory intent. And if a state constitutional
    provision "is indeed discriminatory, it is 'per se invalid' unless the [State] 'can
    -12-
    demonstrate, under rigorous scrutiny, that [it has] no other means to advance a
    legitimate local interest.' " 
    Hazeltine, 340 F.3d at 593
    (quoting C & A Carbone, Inc.
    v. Town of Clarkstown, 
    511 U.S. 383
    , 392 (1994)).
    The State Officials argue that some of the threats that stem from unrestricted
    corporate ownership of Nebraska farm and ranch land include absentee owners of
    land, negative effects on the social and economic culture of rural Nebraska, and a lack
    of good stewardship of the state's land, water, and natural resources. While the State
    Officials concede the district court's finding that the third problem could be resolved
    through other means, as, for instance, by regulation, they assert that the first two
    issues require the intervention of Initiative 300.
    As the plaintiffs point out, however, the State Officials' argument with respect
    to preventing absentee ownership of land is directly contradicted by their
    interpretation of the family farm exception, under which an out-of-state corporation
    could own farmland or engage in farming operations without residing or performing
    daily labor in Nebraska. In addition, the State Officials do not indicate why land use
    and environmental regulations could not resolve any difficulties associated with
    absentee ownership. We think that the same holds true for the State Officials' claim
    about the "negative effects on the social and economic culture of rural Nebraska,"
    though we cannot be sure what is meant by these terms. It appears in fact that the
    State Officials are attempting to obfuscate the issue by using such a vague definition
    of these "negative effects" that the definition itself is what prevents us from suggesting
    concrete alternative measures. Were the state interests more clearly defined, we
    would be able to discern whether specific regulations could address the particular
    difficulties that frustrate the promotion of those interests. We assume that a mere
    desire to maintain the status quo cannot in itself be a "legitimate local interest."
    Indeed, it is that kind of xenophobia that the dormant commerce clause sets its face
    against.
    -13-
    The State Officials failed to meet their burden of showing that Nebraska could
    not advance a legitimate local interest without discriminating against non-resident
    farm corporations and limited partnerships. The amendment passed as a result of
    Initiative 300 thus fails the conditions that we set out in Hazeltine, and we affirm the
    district court's holding that Neb. Const. art. XII, § 8 violates the dormant commerce
    clause both on its face and based on its discriminatory intent.
    IV.
    The State Officials urge us not to hold the entire amendment unconstitutional
    even if part of it is unconstitutional in its current form; rather, they say, we should
    sever its unconstitutional portions. As the district court explained, the Nebraska
    Supreme Court has held that a portion of a statute is severable if a "workable plan"
    remains after severance, the valid portions are "independently enforceable," the
    invalid portion did not serve as "such an inducement to the valid parts that the valid
    parts would not have passed without the invalid part," and severance will not violate
    the "intent of the Legislature." Jaksha v. State, 
    241 Neb. 106
    , 129, 
    486 N.W.2d 858
    ,
    873 (1992), as quoted in 
    Jones, 405 F. Supp. 2d at 1087
    . We note, as did the district
    court, that the Nebraska Supreme Court has held that the constitutional part of an
    initiative to amend the state constitution "may be saved only if it appears that the
    unconstitutional part did not constitute an inducement to the passage of the remaining
    [part]." Duggan v. Beerman, 
    249 Neb. 411
    , 430, 
    544 N.W.2d 68
    , 79-80 (1996).
    While severing the unconstitutional portion of the initiative amendment here
    leaves a workable plan that is independently enforceable, a severance would not
    satisfy the conditions that the Nebraska Supreme Court has outlined for a severance.
    Initiative 300 contains no severability clause and, like the district court, we "cannot
    conclude that the residency or day-to-day labor-and-management provisions in the
    family-farm exemption were not an inducement to the passage of Initiative 300,"
    
    Jones, 405 F. Supp. 2d at 1088
    . Reading the amendment as we do, it would clearly
    violate the voters' intent to sever the portion in dispute. We thus have no other option
    -14-
    than to affirm the district court's judgment and hold that the entire amendment based
    on Initiative 300 is unconstitutional.
    V.
    The State Officials also argue that six witness declarations, three depositions,
    certain deposition exhibits, and two videotape exhibits, all of which the plaintiffs
    offered in support of their motion for summary judgment, contained information that
    was not relevant to the adjudication of this case. We have considered the State
    Officials' objections and conclude that they are meritless.
    VI.
    Because we agree with the district court's decision on the grounds that Neb.
    Const. art. XII, § 8 violates the dormant commerce clause, we have no occasion to
    reach the question of whether it also violates the ADA. We note that it may become
    necessary to address that question if the plaintiffs pressing the ADA claim move for
    and receive attorneys' fees in the district court. Until that happens, however, we see
    no reason to rule on the question of the applicability and effect of the ADA in the
    current circumstances of the case.
    Affirmed.
    ______________________________
    -15-
    

Document Info

Docket Number: 06-1308

Citation Numbers: 470 F.3d 1261, 2006 U.S. App. LEXIS 30588

Judges: Arnold, Bye, Melloy

Filed Date: 12/13/2006

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (18)

No. 98-2951 , 167 F.3d 458 ( 1999 )

Bowen v. Kendrick , 108 S. Ct. 2562 ( 1988 )

planned-parenthood-of-minnesota-a-non-profit-minnesota-corporation-and , 910 F.2d 479 ( 1990 )

sdds-inc-a-south-dakota-corporation-v-state-of-south-dakota-mark-w , 47 F.3d 263 ( 1995 )

C & a Carbone, Inc. v. Town of Clarkstown , 114 S. Ct. 1677 ( 1994 )

Clinton v. City of New York , 118 S. Ct. 2091 ( 1998 )

Pig Pro Nonstock Cooperative v. Moore , 253 Neb. 72 ( 1997 )

R & M Oil & Supply, Inc., an Illinois Corporation v. John L.... , 307 F.3d 731 ( 2002 )

Robert HOEKEL, Appellant, v. PLUMBING PLANNING CORPORATION, ... , 20 F.3d 839 ( 1994 )

Duggan v. Beermann , 249 Neb. 411 ( 1996 )

the-national-wildlife-federation-the-minnesota-conservation-federation , 955 F.2d 1199 ( 1992 )

loren-faibisch-v-university-of-minnesota-university-of-minnesota-board-of , 304 F.3d 797 ( 2002 )

south-dakota-farm-bureau-inc-south-dakota-sheep-growers-association-inc , 340 F.3d 583 ( 2003 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

Adams v. Watson, Etc. , 10 F.3d 915 ( 1993 )

U & I Sanitation v. City of Columbus , 205 F.3d 1063 ( 2000 )

saint-paul-area-chamber-of-commerce-a-minnesota-nonprofit-corporation , 439 F.3d 481 ( 2006 )

smithfield-foods-inc-murphy-farms-llc-prestage-stoecker-farms-inc-v , 367 F.3d 1061 ( 2004 )

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