Christensen v. Gale , 301 Neb. 19 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/28/2018 01:10 AM CDT
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
CHRISTENSEN v. GALE
Cite as 301 Neb. 19M ark R. Christensen and Lydia Brasch, appellants,
v. John Gale, Secretary of State of the
State of Nebraska, et al., appellees.
___ N.W.2d ___
Filed September 12, 2018. No. S-18-825.
1. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted, giv-
ing that party the benefit of all reasonable inferences deducible from
the evidence.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Judgments: Jurisdiction. A jurisdictional question that does not involve
a factual dispute is a matter of law.
4. Judges: Evidence: Appeal and Error. The exercise of judicial discre-
tion is implicit in determining the relevance of evidence, and a trial
court’s decision regarding relevance will not be reversed absent an abuse
of discretion.
5. Constitutional Law: Initiative and Referendum. The power of initia-
tive in article III, § 1, of the Nebraska Constitution is “[t]he first power
reserved by the people” under article III, § 2.
6. ____: ____. The right of initiative is precious to the people and one
which the courts are zealous to preserve to the fullest tenable measure
of spirit as well as letter.
7. Initiative and Referendum: Statutes. Statutory provisions authorizing
initiative petitions should be construed in such a manner that the legisla-
tive power reserved in the people is effectual and should not be circum-
scribed by restrictive legislation or narrow and strict interpretation of the
statutes pertaining to its exercise.
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CHRISTENSEN v. GALE
Cite as 301 Neb. 198. Initiative and Referendum. The sworn statement provision of Neb.
Rev. Stat. § 32-1405(1) (Reissue 2016) is mandatory.
9. Initiative and Referendum: Statutes: Words and Phrases. “Sponsoring
the petition” in the context of Neb. Rev. Stat. § 32-1405(1) (Reissue
2016) means assuming responsibility for the initiative or referendum
petition process.
10. Initiative and Referendum: Words and Phrases. Defining sponsors
as those who assume responsibility for the petition process serves the
dual purposes of informing the public of (1) who may be held respon-
sible for the petition, exposing themselves to potential criminal charges
if information is falsified, and (2) who stands ready to accept responsi-
bility to facilitate the referendum’s inclusion on the ballot and defend
the referendum process if challenged.
11. Initiative and Referendum: Statutes. The statutory scheme governing
initiative and referendum petitions requires filings with the Secretary of
State identifying the persons or entities taking legal responsibility for
the petition process, while the Nebraska Political Accountability and
Disclosure Act focuses on identifying those persons or entities finan-
cially supporting the petition process.
12. ____: ____. Limiting the category of “sponsors” for purposes of Neb.
Rev. Stat. § 32-1405 (Reissue 2016) to those persons or entities who
have specifically agreed to be responsible for the petition process and
serve in the capacities the statutes require of sponsors, lends clarity and
simplicity to the petition process, thereby facilitating and preserving
its exercise.
13. ____: ____. A non-named person or entity’s motivation to decline to
be a named sponsor is irrelevant to the question of who must be listed
pursuant to Neb. Rev. Stat. § 32-1405(1) (Reissue 2016).
14. Constitutional Law: Initiative and Referendum: Intent. The control-
ling consideration in determining the singleness of a proposed amend-
ment is its singleness of purpose and the relationship of the details to the
general subject.
15. ____: ____: ____. The controlling consideration in determining the
singleness of a subject for purposes of article III, § 2, of the Nebraska
Constitution is its singleness of purpose and relationship of the details to
the general subject, not the strict necessity of any given detail to carry
out the general subject.
16. Initiative and Referendum: Statutes: Intent. Whether the elements
of complex statutory amendments can be characterized as presenting
different policy issues, the crux of the question is the extent of the dif-
ferences and how the elements relate to the primary purpose.
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CHRISTENSEN v. GALE
Cite as 301 Neb. 1917. Courts: Justiciable Issues. Ripeness is a justiciability doctrine that
courts consider in determining whether they may properly decide a
controversy.
18. Courts. The fundamental principle of ripeness is that courts should
avoid entangling themselves, through premature adjudication, in abstract
disagreements based on contingent future events that may not occur at
all or may not occur as anticipated.
19. Initiative and Referendum: Justiciable Issues. Unlike challenges to
the form of a ballot measure or the procedural requirements to its place-
ment on the ballot, which are challenges to whether the measure is
legally sufficient to be submitted to the voters, substantive challenges to
proposed initiatives are not justiciable before the measures are adopted
by voters.
20. Judges: Evidence: Appeal and Error. The exercise of judicial discre-
tion is implicit in determining the relevance of evidence, and a trial
court’s decision regarding relevance will not be reversed absent an abuse
of discretion.
21. Judges: Words and Phrases. An abuse of discretion in a ruling on
the admissibility of evidence occurs when the trial judge’s reasons
or rulings are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for
disposition.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
J.L. Spray and Ryan K. McIntosh, of Mattson Ricketts Law
Firm, for appellants.
Douglas J. Peterson, Attorney General, and Ryan S. Post for
appellee John Gale.
Andre R. Barry and Shawn D. Renner, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellees Insure the
Good Life, Sarah Amanda Gershon, Kathy Campbell, and
Rowen Zetterman.
H eavican, C.J., Cassel, Stacy, Funke, and Freudenberg,
JJ.
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CHRISTENSEN v. GALE
Cite as 301 Neb. 19Freudenberg, J.
NATURE OF CASE
This case presents a challenge to an initiative petition seek-
ing to expand Medicaid coverage. The district court granted
summary judgment in favor of the defendant sponsors and the
Secretary of State. The court concluded that the measure did
not violate the single subject rule, because the maximization
of federal funding for the expanding of Medicaid eligibility
had a natural and necessary connection to the expansion. The
court also concluded that the list of sponsors was not incom-
plete under Neb. Rev. Stat. § 32-1405(1) (Reissue 2016). One
of the sponsors, “Insure the Good Life,” was both a political
committee and a service mark. While the controlling members
of the committee were named sponsors, the nonprofit organi-
zation holding the service mark was not. The court reasoned
that because the nonprofit organization did not assume respon-
sibility for the initiative process, it was not a sponsor. The
court found that further challenges to the proposed measure
as being an unconstitutional delegation of legislative author-
ity and an improper appropriation were not ripe for review.
We affirm.
BACKGROUND
An initiative petition to expand coverage in the Medical
Assistance Act1 was filed with Secretary of State John Gale.
The petition proposed the addition of “Section 2” to that
act, with five subsections and the general object to “expand
eligibility to cover certain adults ages 19 through 64 whose
incomes are one-hundred-thirty-eight percent (138%) of the
federal poverty level or below . . . and to maximize federal
financial participation to fund their care.”
Specifically, the subsections of proposed section 2 would: (1)
expand Medicaid to adults ages 19 through 64 whose income
1
Neb. Rev. Stat. §§ 68-901 to 68-991 (Reissue 2009, Cum. Supp. 2016 &
Supp. 2017).
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CHRISTENSEN v. GALE
Cite as 301 Neb. 19is equal to or less than 138 percent of the federal poverty
level, (2) direct the Department of Health and Human Services
(DHHS) to submit a state plan amendment and all other neces-
sary documents seeking required approvals or waivers to the
federal centers for Medicare and Medicaid services, (3) direct
DHHS to take all actions necessary to maximize federal finan-
cial participation in funding medical assistance pursuant to sec-
tion 2, (4) require that no greater burdens or restrictions may
be imposed on persons eligible for medical assistance under
section 2 than any other population eligible for medical assist­
ance, and (5) require that section 2 shall apply notwithstanding
any other provision of law or federal waiver.
The sworn statement filed with the Secretary of State
listed four sponsors of the petition: Sarah Amanda Gershon,
Kathy Campbell, Dr. Rowen Zetterman, and Insure the Good
Life (the named sponsors). Insure the Good Life is both a
ballot question committee and a service mark registered by
Nebraska Appleseed Center for Law in the Public Interest
(Appleseed).
Mark R. Christensen, a former member of the Nebraska
Legislature and a parent of a child who received Medicaid
benefits, and Lydia Brasch, a current member of the Nebraska
Legislature, brought an action for declaratory judgment under
Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016)
and injunctive relief pursuant to Neb. Rev. Stat. § 32-1412(2)
(Reissue 2016) against the named sponsors of the petition and
Gale in his capacity as Secretary of State. They alleged that
(1) the initiative violated the single subject rule of article III,
§ 2, of the Nebraska Constitution; (2) the initiative failed to
contain a sworn statement containing the names and addresses
of every person, corporation, or association sponsoring the
petition, as required by § 32-1405(1); (3) the proposed amend-
ment constituted an unconstitutional delegation of legislative
authority2; and (4) the proposed amendment failed to meet the
2
See Neb. Const. art. II, § 1.
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CHRISTENSEN v. GALE
Cite as 301 Neb. 19criteria set forth in Neb. Rev. Stat. § 49-804 (Reissue 2010),
for appropriations.
Specifically, Christensen and Brasch alleged that the ini-
tiative violated the single subject rule, because the expan-
sion of Medicaid eligibility and the maximization of federal
financial participation in funding Medicaid are two separate
and distinct subjects. They alleged that the initiative violated
the mandate of § 32-1405(1), that it list every person, cor-
poration, or association sponsoring the petition, because it
failed to include Appleseed. They alleged that the proposed
amendment unconstitutionally delegated legislative power by
directing DHHS to develop a plan for implementation of the
amendment without sufficient statutory guidance or limita-
tions. And they alleged that the proposed amendment was an
appropriation, because it “requires DHHS to expand medical
assistance to thousands of additional individuals at a cost of
millions of dollars,” and such appropriation did not satisfy the
criteria of § 49-804.
The Secretary of State and the named sponsors moved
to dismiss the complaint pursuant to Neb. Ct. R. Pldg.
§ 6-1112(b)(1) and (6), for failure to state a claim and lack of
jurisdiction. Christensen and Brasch moved for a “Judgment on
the Complaint” or, alternatively, for summary judgment.
At the hearing on the motions, the Secretary of State offered,
and the court received, exhibits 1 and 2. Exhibit 1 is a copy of
the petition sponsor’s sworn statement, the object statement,
the proposed text of the statutory initiative petition, and the
sample initiative petition form. Exhibit 2 is a certification by
the Secretary of State that Insure the Good Life was registered
as a service mark by Appleseed on September 28, 2015, with
the stated purpose of being used on materials distributed to
support expansion of Medicaid in the sale or advertising of
services. These exhibits were also attached to the complaint.
The parties agreed that the receipt of these exhibits, alone, did
not convert the motions to dismiss into motions for summary
judgment. But both parties offered further exhibits.
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Cite as 301 Neb. 19Christensen and Brasch offered exhibits 3 and 4. Exhibit 3
was a certified copy of proposed 2017 Neb. Laws, L.B. 441,
with attached fiscal analyst notes from the 105th Legislature,
First Session. The court sustained the sponsors’ and the
Secretary of State’s relevancy objections, as L.B. 441 was a
bill that did not pass. The bill sought to expand Medicaid, and
the attached fiscal analyst notes estimated the increased state
expenditures that would result.
Exhibit 4 is an exhibit by Christensen and Brasch’s attorney,
averring that he had personally observed Appleseed’s social
media accounts displaying the Insure the Good Life logo.
Several posts were attached. The Secretary of State objected
on relevancy. The sponsors objected on relevancy and hearsay
grounds. For purposes of the motion to dismiss, the spon-
sors also objected that it was evidence outside the pleadings.
Christensen and Brasch renewed the offer of exhibit 4 with the
understanding that the motions to dismiss would be considered
motions for summary judgment. The court received exhibit 4
into evidence.
The sponsors then offered exhibits 5 through 8 for purposes
of summary judgment. The exhibits contain records of the
Nebraska Accountability and Disclosure Commission.
Exhibit 5 is a statement of organization of a political com-
mittee, stating that Insure the Good Life is such a committee.
The statement of organization lists Noelle Obermeyer as the
treasurer of the committee and names Gershon, Campbell, and
Zetterman as the controlling individuals of the committee.
Exhibits 6 through 8 are Insure the Good Life’s campaign
statements filed with the commission. Christensen and Brasch
objected to exhibit 5 on relevancy and foundation grounds
and to exhibits 6 through 8 on relevancy. Exhibit 7 shows that
Insure the Good Life disclosed to the commission contributions
by Appleseed. The court overruled the objections and entered
exhibits 5 through 8 into evidence.
Treating the motions to dismiss as motions for summary
judgment without any objection by the parties, the court
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CHRISTENSEN v. GALE
Cite as 301 Neb. 19ultimately entered summary judgment for the named spon-
sors and the Secretary of State. The court concluded that the
initiative did not violate the single subject rule because the
maximization of federal financial participation in the Medicaid
expansion had a natural and necessary connection to the expan-
sion. The court reasoned that even viewing the evidence in a
light most favorable to Christensen and Brasch and concluding
that Appleseed supported the initiative through a public rela-
tions campaign and posts on social media accounts, such facts
would not make Appleseed a sponsor of the petition under
§ 32-1405(1), because Appleseed did not assume responsibility
for the initiative process. The court found that the remaining
separation of powers and appropriations claims were not yet
ripe for review. Christensen and Brasch appeal.
ASSIGNMENTS OF ERROR
Christensen and Brasch assign, summarized and restated,
that the district court erred by (1) dismissing as unripe and
failing to find merit to its claims that the ballot measure was
an unconstitutional delegation of legislative authority and did
not meet the criteria set forth in § 49-804 for appropriations,
(2) failing to determine that the initiative petition was consti-
tutionally deficient because it contained more than one subject,
(3) failing to determine that the initiative petition was constitu-
tionally deficient because it did not list Appleseed as a sponsor,
and (4) excluding exhibit 3 from the evidence.
STANDARD OF REVIEW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted, giving that party
the benefit of all reasonable inferences deducible from the
evidence.3
3
City of Fremont v. Kotas, 279 Neb. 720, 781 N.W.2d 456 (2010), abrogated
on other grounds, City of North Platte v. Tilgner, 282 Neb. 328, 803
N.W.2d 469 (2011).
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Cite as 301 Neb. 19[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.4
[3] A jurisdictional question that does not involve a factual
dispute is a matter of law.5
[4] The exercise of judicial discretion is implicit in deter-
mining the relevance of evidence, and a trial court’s deci-
sion regarding relevance will not be reversed absent an abuse
of discretion.6
ANALYSIS
[5-7] Raising issues of statutory and constitutional inter-
pretation, Christensen and Brasch seek to invalidate an initia-
tive petition that received enough signatures to be placed on
the November 2018 ballot. The power of initiative in article
III, § 1, of the Nebraska Constitution is “[t]he first power
reserved by the people.”7 The right of initiative is precious
to the people and one which the courts are zealous to pre-
serve to the fullest tenable measure of spirit as well as letter.8
Statutory provisions authorizing initiative petitions should be
construed in such a manner that the legislative power reserved
in the people is effectual and should not be circumscribed by
restrictive legislation or narrow and strict interpretation of the
statutes pertaining to its exercise.9
Sponsors
[8,9] Christensen and Brasch first contend that the initiative
is invalid because Appleseed was a “sponsor” of the initiative
4
Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).
5
Loontjer v. Robinson, 266 Neb. 902, 670 N.W.2d 301 (2003).
6
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
7
Neb. Const. art. III, § 2.
8
See Hargesheimer v. Gale, supra note 4.
9
See id.
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Cite as 301 Neb. 19and was not listed in the sworn statement as required by
§ 32-1405(1). Section 32-1405(1) provides:
Prior to obtaining any signatures on an initiative or ref-
erendum petition, a statement of the object of the peti-
tion and the text of the measure shall be filed with the
Secretary of State together with a sworn statement con-
taining the names and street addresses of every person,
corporation, or association sponsoring the petition.
The sworn statement provision of § 32-1405(1) is mandatory.10
Section 32-1405(1) and related statutes do not provide defini-
tions for the word “sponsor” or the phrase “sponsoring the peti-
tion.” But we held in Hargesheimer v. Gale11 that sponsoring
the petition means assuming responsibility for the initiative or
referendum petition process.
[10] In Hargesheimer, we explained that defining sponsors
as those who assume responsibility for the petition process
serves the dual purposes of informing the public of (1) who
may be held responsible for the petition, exposing themselves
to potential criminal charges if information is falsified,12 and
(2) who stands ready to accept responsibility to facilitate the
referendum’s inclusion on the ballot and defend the referendum
process if challenged.13 The initiative petition statutes impose
several responsibilities upon named sponsors once the initia-
tive process has commenced, and we indicated that the primary
purpose of the “sworn statement containing the names and
street addresses of every person, corporation, or association
sponsoring the petition” in § 32-1405(1) is to identify those
individuals agreeing to accept such responsibilities.14
10
Loontjer v. Robinson, supra note 5.
11
Hargesheimer v. Gale, supra note 4.
12
See Neb. Rev. Stat. § 32-1502 (Reissue 2016).
13
Hargesheimer v. Gale, supra note 4.
14
See Loontjer v. Robinson, supra note 5 (Hendry, C.J., concurring in result;
Gerrard, J., joins). See, also, e.g., §§ 32-1405(2) and 32-1412(2) and Neb.
Rev. Stat. § 32-1409(3) (Reissue 2010).
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Cite as 301 Neb. 19We specifically rejected the argument that sponsors must
include all financial contributors to the petition, so that the
public has notice of who such persons are. We explained that
not only did amendments to § 32-1405(1) remove language
including as sponsors all individuals or entities “‘“contributing
or pledging contribution of money or other things of value,”’”15
the public has access to the identity of all financial contribu-
tors through reports filed with the Nebraska Accountability and
Disclosure Commission.16
[11] We summarized that the statutory scheme governing
initiative and referendum petitions17 requires filings with the
Secretary of State identifying the persons or entities taking
legal responsibility for the petition process, while the Nebraska
Political Accountability and Disclosure Act18 focuses on iden-
tifying those persons or entities financially supporting the peti-
tion process.19
[12] We also explained that limiting the category of “spon-
sors” for purposes of § 32-1405 to “those persons or entities
who have specifically agreed to be responsible for the petition
process and serve in the capacities the statutes require of spon-
sors,” lent clarity and simplicity to the petition process, thereby
facilitating and preserving its exercise.20 To interpret the term
more broadly would make “compliance with the statute more
precarious” by “inject[ing] ambiguity” and “expos[ing] the
petition process to procedural challenges and the risk of defects
unrelated to the substance of the petition.”21
15
Hargesheimer v. Gale, supra note 4, 294 Neb. at 132, 881 N.W.2d at 596-
97 (emphasis omitted).
16
See, generally, Neb. Rev. Stat. §§ 49-1401 to 49-14,141 (Reissue 2010,
Cum. Supp. 2016 & Supp. 2017).
17
Neb. Rev. Stat. §§ 32-1401 to 32-1417 (Reissue 2016).
18
§§ 49-1401 to 49-14,141.
19
See Hargesheimer v. Gale, supra note 4.
20
Id. at 134-35, 881 N.W.2d at 598.
21
Id. at 134, 881 N.W.2d at 598.
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Cite as 301 Neb. 19Christensen and Brasch attempt to distinguish this case
from Hargesheimer by focusing on the novel fact that Insure
the Good Life was a service mark registered by Appleseed.
They do not address the fact that Insure the Good Life is also a
registered political committee and that all its controlling mem-
bers were named in the sworn statement as sponsors.
[13] A “[s]ervice mark” is “any word, name, symbol, or
device or any combination thereof used by a person, to iden-
tify and distinguish the services of one person, including a
unique service, from the services of others.”22 To be licensed
to use a service mark is to have the right or permission to use
it.23 Christensen and Brasch argue that Appleseed was a spon-
sor not because of its involvement in financing or promoting
the petition, but because it purposefully attempted to deceive
voters by participating in the initiative process under a serv­
ice mark without listing its corporate identity. They argue
that because Insure the Good Life was a sponsor, Appleseed
must also be a sponsor. Christensen and Brasch’s arguments
are not meaningfully different than the arguments that were
made in Loontjer v. Robinson, of hiding behind a “‘sham
committee.’”24 In the course of setting forth the definition
of sponsor that we later expressly adopted in Hargesheimer,
Chief Justice Hendry found those arguments unpersuasive. A
non-named person or entity’s motivation to decline to be a
named sponsor is irrelevant to the question of who must be
listed pursuant to § 32-1405(1).
We rejected in Hargesheimer the concept of analyzing a
person or entity’s involvement in financing or promoting the
petition, because doing so would inject ambiguity, making
compliance with the statute more precarious and exposing the
22
Neb. Rev. Stat. § 87-128(8) (Reissue 2014). See, also, Neb. Rev. Stat.
§§ 28-618(19) (Reissue 2016) and 87-301(22) (Cum. Supp. 2016).
23
See Neb. Rev. Stat. § 59-1714.01 (Reissue 2010).
24
Loontjer v. Robinson, supra note 5, 266 Neb. at 916, 670 N.W.2d at 312(Hendry, C.J., concurring in result; Gerrard, J., joins).
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Cite as 301 Neb. 19petition process to procedural challenges and the risk of defects
unrelated to the substance of the petition.25 To inject into the
sponsorship analysis questions of intent, as Christensen and
Brasch suggest we ought, would inject even more ambiguity
into the petition process than the test suggested and rejected by
this court in Hargesheimer. This would unnecessarily under-
mine the first power reserved by the people.
Again, the sponsor is nothing more than the person or entity
identifying himself, herself, or itself as willing to assume
statutory responsibilities once the initiative process has com-
menced. Under the definition adopted in Hargesheimer, Insure
the Good Life, Gershon, Campbell, and Zetterman are the
sponsors, and there are no other persons or entities who are
sponsors. The issues raised by Christensen and Brasch con-
cerning the public’s need to know who or what entity might be
“hiding” their involvement are addressed through the Nebraska
Political Accountability and Disclosure Act and Appleseed’s
disclosure of its contributions to Insure the Good Life, a ballot
question committee.
We agree with the district court that the list of sponsors in the
sworn statement is complete and does not violate § 32-1405(1).
Single Subject
Second, Christensen and Brasch challenge the initiative
as violating the single subject rule. Article III, § 2, of the
Nebraska Constitution provides, among other matters related
to initiatives, that “[i]nitiative measures shall contain only one
subject.” A purpose of this language is to avoid voter confusion
and logrolling, which is the practice of combining dissimi-
lar 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 submit-
ted separately.26
25
See Hargesheimer v. Gale, supra note 4.
26
See State ex rel. Loontjer v. Gale, 288 Neb. 973, 853 N.W.2d 494 (2014).
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Cite as 301 Neb. 19[14] We, like the majority of jurisdictions, follow the natu-
ral and necessary connection test: “‘[W]here 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.’”27 The control-
ling consideration in determining the singleness of a proposed
amendment is its singleness of purpose and the relationship
of the details to the general subject.28 The general subject is
defined by its primary purpose.29
In State ex rel. Loontjer v. Gale,30 we held that a pro-
posed ballot measure violated the separate-vote provision of
article XVI, § 1, of the Nebraska Constitution, which imposes
the same requirements as the single subject provision under
article III, § 2. The proposed ballot measure asked vot-
ers to amend the state Constitution, which permitted only
live and simulcast horseracing wagers, in order to allow
for slot-machine-type gambling on replayed horseraces.31
Additionally, as to both live and replayed horseracing, the
measure proposed directing the tax revenues to property tax
relief and education funding, thereby redirecting the live
horseracing tax revenue which was at that time going else-
where.32 The proposed amendments did not otherwise address
live horseracing.
We said that the legalization of a new form of horseracing
lacked a natural and necessary connection to the measure’s
proposal to the use tax revenues for property tax relief and
education.33 We explained:
27
Id. at 999, 853 N.W.2d at 513. See, also, Munch v. Tusa, 140 Neb. 457,
300 N.W. 385 (1941).
28
See State ex rel. Loontjer v. Gale, supra note 26.
29
See id.
30
Id.
31
See id.
32
See id.
33
See id.
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Cite as 301 Neb. 19The appropriation proposal’s only connection to the
wagering proposal was to enhance the odds that voters
would approve the new form of wagering. Many voters
who might oppose proposals for new forms of wager-
ing, standing alone, might nonetheless want new funding
for property tax relief and kindergarten through 12th
grade education. But they would be presented with a
take-it-or-leave-it proposition. And this type of proposi-
tion is at the heart of the prohibition against logrolling.
Conversely, even voters who would support the new type
of wagering might prefer that the parimutuel tax rev-
enues continue to be credited to the state’s general fund,
instead of devoted exclusively to property tax relief
and education.34
In the case before us, we do not view the funding proposal
in section two of the proposed initiative language as being
only to enhance the odds that voters would approve Medicaid
expansion. And furthermore, in contrast, in City of Fremont v.
Kotas,35 we held that an initiative petition did not violate the
single subject rule. Despite several components of the pro-
posed measure dealing with the subjects of occupancy, licens-
ing, electronic verification, government uses, resources, and
penalties, and the application to both landlords and employers,
we held that these subjects had a natural and necessary con-
nection with each other and were part of the general subject of
regulating illegal immigration. The proposed measure was not
confusing or deceiving to the voters.36
Christensen and Brasch argue that there were two distinct
subjects in the initiative: (1) the expansion of Medicaid and
(2) whether such expansion would be funded, as much as
possible, by the federal government. While they argue for
the first time on appeal that the initiative also contained the
34
Id. at 1004, 853 N.W.2d at 515.
35
City of Fremont v. Kotas, supra note 3.
36
See id.- 34 -
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Cite as 301 Neb. 19separate subject of “delegat[ing] to the executive branch
the obligation to amend the State’s Medicaid plan adopting,
accepting and assenting to all applicable provisions of Title
XIX and Title XXI of the federal Social Security Act,” they
did not raise this contention below.37 Therefore, we will not
address it.38
We agree with the district court that the expansion of
Medicaid and its funding have a natural and necessary con-
nection with each other and, thus, a singleness of purpose. The
general subject is Medicaid expansion, and maximizing federal
funding for that expansion is a detail related to the singleness
of purpose of expanding Medicaid.
[15] This ballot measure is not like the one in State ex rel.
Loontjer. It is more akin to Kotas, where several subelements
related to the single subject of regulating illegal immigra-
tion. The single subject test is not, as Christensen and Brasch
propose, whether the initiative could theoretically have pro-
posed the expansion of Medicaid without also proposing that
federal funding is maximized in order to do so; i.e., whether
federal dollars are absolutely “necessary” to effectuate an
increase in Medicaid. The controlling consideration in deter-
mining the singleness of a subject for purposes of article III,
§ 2, of the Nebraska Constitution is its singleness of purpose
and relationship of the details to the general subject, not
the strict necessity of any given detail to carry out the gen-
eral subject.39
[16] Because its parts all relate to the same general sub-
ject, the initiative petition does not create voter confusion and
logrolling. Christensen and Brasch assert that some voters
might be in favor of Medicaid expansion but not in favor of
expanding federal funding and that the measure presents “two
separate, large substantive police [sic] issues with a single
37
Brief for appellants at 12.
38
See, e.g., Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015).
39
See State ex rel. Loontjer v. Gale, supra note 26.
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Cite as 301 Neb. 19vote.”40 Whether the elements of complex statutory amend-
ments can be characterized as presenting different policy
issues, the crux of the question is the extent of the differences
and how the elements relate to the primary purpose.
The voters considering the initiative petition here at issue
are unlikely to be confused and persuaded to vote for the pri-
mary purpose of expanding Medicaid in order to obtain, more
generally, federal funds. The subject of federal funding does
not present a level of dissimilarity that creates a risk of confu-
sion and logrolling.
We agree with the district court that the initiative did not
violate the single subject rule.
R ipeness
[17,18] Likewise, we agree with the district court that
Christensen and Brasch’s remaining two challenges are not
ripe for review. Ripeness is a justiciability doctrine that courts
consider in determining whether they may properly decide a
controversy.41 The fundamental principle of ripeness is that
courts should avoid entangling themselves, through prema-
ture adjudication, in abstract disagreements based on contin-
gent future events that may not occur at all or may not occur
as anticipated.42
[19] Unlike challenges to the form of a ballot measure or
the procedural requirements to its placement on the ballot,
which are challenges to whether the measure is legally suf-
ficient to be submitted to the voters, substantive challenges
to proposed initiatives are not justiciable before the measures
are adopted by voters.43 An opinion on the substantive chal-
lenge based on the contingent future event of the measure’s
passage would be merely advisory. Furthermore, preelection
40
Brief for appellants at 14.
41
State ex rel. Loontjer v. Gale, supra note 26.
42
Id.
43
See, id.; City of Fremont v. Kotas, supra note 3.
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Cite as 301 Neb. 19judicial review of substantive challenges to initiatives tends to
lessen the effectiveness of the constitutional initiative power
“reserved by the people,”44 and, regardless of the merits of
the proposed initiative, inappropriately injects the courts into
political debates.45
Christensen and Brasch rely on State ex rel. Brant v.
Beermann46 to argue that a challenge to the measure for its
substantive defects, at least where those defects touch upon the
requirements of article III, § 2, of the Nebraska Constitution,
is ripe when patently clear. In State ex rel. Brant, we refused
to issue a writ of mandamus requiring the Secretary of State to
place a measure on the ballot, after the Secretary of State had
determined that the measure was a mere statement of position
and had no semblance of a law within the initiative provisions
of the constitution. But we did not specifically address ripe-
ness, and in State ex rel. Loontjer, we expressly recognized
that our holding in State ex rel. Brant had been abrogated by
Duggan v. Beermann.47
We said in State ex rel. Loontjer that we had “assumed
[in State ex rel. Brant] the Secretary [of State] could reject
a proposed ballot measure for its substantive constitutional
defects.”48 But in Duggan, we had made clear that substantive
defects are not ripe for review.49
A substantive challenge to a ballot measure is not ripe until
the measure is voted into law. Both Christensen and Brasch’s
challenges to the proposed law as an unconstitutional del-
egation of legislative authority and as violating the criteria
44
Neb. Const. art. III, § 2.
45
Stewart v. Advanced Gaming Tech., 272 Neb. 471, 723 N.W.2d 65 (2006).
46
State ex rel. Brant v. Beermann, 217 Neb. 632, 350 N.W.2d 18 (1984).
47
Duggan v. Beermann, 249 Neb. 411, 544 N.W.2d 68 (1996). See State ex
rel. Loontjer v. Gale, supra note 26.
48
State ex rel. Loontjer v. Gale, supra note 26, 288 Neb. at 987, 853 N.W.2d
at 505.
49
See, id. (citing Duggan v. Beermann, supra note 47).
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Cite as 301 Neb. 19for appropriations set forth in § 49-804 are substantive chal-
lenges to the initiative. These substantive challenges are not
ripe for judicial review, and we express no opinion on any
of them.
Exhibit 3
[20,21] Finally, Christensen and Brasch assert that the dis-
trict court erred in sustaining the Secretary of State and named
sponsors’ relevancy objection to exhibit 3. The exercise of
judicial discretion is implicit in determining the relevance of
evidence, and a trial court’s decision regarding relevance will
not be reversed absent an abuse of discretion.50 An abuse of
discretion in a ruling on the admissibility of evidence occurs
when the trial judge’s reasons or rulings are clearly untenable,
unfairly depriving a litigant of a substantial right and denying
just results in matters submitted for disposition.51 Christensen
and Brasch assert that exhibit 3 was relevant to demonstrate
the extent of the expenditure that the proposed measure would
entail. In other words, they assert that exhibit 3 was relevant
to their appropriations challenge. Because that challenge was
not ripe, the court did not abuse its discretion in determining
that exhibit 3 was not relevant.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court, which dismissed Christensen and Brasch’s com-
plaint with prejudice.
A ffirmed.
Miller-Lerman, J., participating on briefs.
Papik, J., not participating.
50
State v. Swindle, supra note 6.
51
Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).