State ex rel. Loontjer v. Gale ( 2014 )

Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 973
Cite as 288 Neb. 973lead to absurd results. Due to their failure to fulfill a condition
precedent, the Webers were effectively in no different posi-
tion during the 2010 season than the area farmers who had no
contract at all with North Loup. It cannot be assumed that the
Legislature intended to impose criminal liability on persons
who refuse to deliver water to those who have no right to
receive it.
We conclude that the district court did not err in determining
that North Loup was entitled to judgment as a matter of law
with respect to the Webers’ claims.
V. CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
Affirmed.
State of Nebraska ex rel. Patricia A. Loontjer, relator,
v. Honorable John A. Gale, Secretary of State
of the State of Nebraska, respondent.
___ N.W.2d ___
Filed September 5, 2014. No. S-14-684.
1. Courts: Justiciable Issues. Ripeness is a justiciability doctrine that courts con-
sider in determining whether they may properly decide a controversy.
2. Courts. The fundamental principle of ripeness is that courts should avoid entan-
gling themselves, through premature adjudication, in abstract disagreements
based on contingent future events that may not occur at all or may not occur
as anticipated.
3. Constitutional Law: Initiative and Referendum: Justiciable Issues. Because
the outcome of an election is a contingent future event, a challenge that a
proposed ballot measure will violate the substantive provisions of the U.S. or
Nebraska Constitution does not present a justiciable controversy. It is not ripe for
judicial determination because the voters might vote to reject the measure.
4. Constitutional Law: Initiative and Referendum. A claim that a proposed ballot
measure violates a constitutional or statutory rule that governs the form of the
measure or the procedural requirements for its placement on the ballot is a chal-
lenge to the legal sufficiency of a ballot measure. Such challenges are ripe for
resolution before an election.
5. Constitutional Law: Initiative and Referendum: Justiciable Issues. An
alleged separate-vote violation under Neb. Const. art. XVI, § 1, challenges a
Nebraska Advance Sheets
974 288 NEBRASKA REPORTS
ballot measure’s legal sufficiency and presents a justiciable controversy before
an election.
6. Constitutional Law: Initiative and Referendum: Public Officers and
Employees. The Secretary of State’s statutory duties to provide the ballot
form for the Legislature’s proposed constitutional amendments and to certify
its contents, coupled with his duties to supervise elections and decide disputed
points of election laws, clearly require the Secretary to consider whether a pro-
posed amendment complies with the separate-vote provision of Neb. Const. art.
XVI, § 1.
7. Public Officers and Employees: Statutes. Power vested in a governmental
body or officer carries with it the implied power to do what is necessary to
accomplish an express statutory duty, absent any other law that restrains the
implied power.
8. Constitutional Law: Initiative and Referendum: Legislature: Public Officers
and Employees. The Secretary of State cannot determine the substantive merits
of the Legislature’s proposed constitutional amendment. But in a legal sufficiency
challenge, he has a duty to reject a proposed amendment as legally defective for
failing to satisfy form and procedural requirements. There is no requirement that
the proposed amendment be “patently unconstitutional on its face” before the
Secretary must act.
9. Constitutional Law: Initiative and Referendum: Legislature. The Legislature’s
independent proposals to amend the constitution must be presented to the voters
for a separate vote even if they are proposed in a single resolution.
10. Constitutional Law: Legislature. The constitutional requirements for legislative
bills do not apply to the Legislature’s proposed amendments.
11. Constitutional Law: Initiative and Referendum. The “single subject” rule that
applies to legislative bills under Neb. Const. art. III, § 14, does not apply to ballot
measures for constitutional amendments.
12. Constitutional Law. It is a fundamental principle of constitutional interpretation
that each and every clause within a constitution has been inserted for a use-
ful purpose.
13. Constitutional Law: Initiative and Referendum: Legislature. The sin-
gle subject rule for voter initiatives and the separate-vote provision for the
Legislature’s proposed amendments should be construed as imposing the same
ballot requirements: A voter initiative or a legislatively proposed constitutional
amendment may not contain two or more distinct subjects for voter approval in
a single vote.
14. Constitutional Law: Administrative Law: Initiative and Referendum. The
natural and necessary connection test that applies to proposed amendments for
city charters and municipal ballot measures also applies to the single subject
requirement for voter initiatives under Neb. Const. art. III, § 2, and the separate-
vote provision of Neb. Cont. art. XVI, § 1.
15. Initiative and Referendum. Under a single subject ballot requirement, the gen-
eral subject of a proposed ballot measure is defined by its primary purpose.
16. ____. Without a unifying purpose, separate proposals in a ballot measure neces-
sarily present independent and distinct proposals that require a separate vote.
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 975
Cite as 288 Neb. 97317. Constitutional Law: Jurisdiction: Declaratory Judgments: Appeal and Error.
When a party has invoked the Nebraska Supreme Court’s original jurisdiction
under one of the causes of action specified in Neb. Const. art. V, § 2, the court
may exercise its authority to grant requested declaratory relief under the Uniform
Declaratory Judgments Act or injunctive relief.
18. Mandamus. A court issues a writ of mandamus only when (1) the relator has
a clear right to the relief sought, (2) a corresponding clear duty exists for the
respondent to perform the act, and (3) no other plain and adequate remedy is
available in the ordinary course of law.
Original action. Writ of mandamus granted.
L. Steven Grasz and Mark D. Hill, of Husch Blackwell,
L.L.P., for relator.
Jon Bruning, Attorney General, L. Jay Bartel, and Lynn A.
Melson for respondent.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Connolly, J.
I. SUMMARY
In April 2014, the Legislature passed L.R. 41CA,1 a reso-
lution to amend the Nebraska Constitution. Neb. Const. art.
III, § 24, generally prohibits the Legislature from authorizing
games of chance, but it contains an exception for live horserac-
ing under specified conditions. L.R. 41CA would amend article
III, § 24(4)(a), in two ways. First, it would permit wager-
ing on “replayed” horseraces in addition to wagering on live
horseraces. Second, it would specify how the Legislature must
appropriate the proceeds from a tax placed on wagering for
both live and replayed horseraces.
Secretary of State John A. Gale, respondent, denied
a request to withhold the proposed amendment from the
November 2014 general election ballot. The Secretary deter-
mined that the amendment was not facially invalid under
the “separate-vote” provision of Neb. Const. art. XVI, § 1.
After that, Patricia A. Loontjer, relator, applied for leave to
1
See 2014 Neb. Laws, L.R. 41CA.
Nebraska Advance Sheets
976 288 NEBRASKA REPORTS
commence an original action in this court to keep the pro-
posed amendment off the ballot. We granted the petition and
expedited the proceeding.
We exercise original jurisdiction under Neb. Const. art. V,
§ 2, because this is a cause of action relating to revenue, in
which the State has a direct interest, and because Loontjer has
requested a writ of mandamus.2 We hold as follows:
•  e conclude that an alleged violation of the separate-vote
W
provision of Neb. Const. art. XVI, § 1, presents a preelection
justiciable issue for a proposed constitutional amendment.
•  e also conclude that the separate-vote provision requires
W
the Legislature to present constitutional amendments to vot-
ers in a manner that allows them to vote separately on dis-
tinct and independent subjects.
•  inally, because L.R. 41CA violates the separate-vote provi-
F
sion, we conclude that article XVI, § 1, bars its placement on
the November 2014 general election ballot.
II. BACKGROUND
1. Legislative Efforts to Authorize Wagering
on R eplayed Horseraces
Neb. Const. art. III, § 24(1), states that “[e]xcept as
provided in this section, the Legislature shall not autho-
rize any game of chance . . . .” Section 24(2) specifically
authorizes the state lottery. And § 24(4) provides that the
games-of-chance prohibition does not apply to wagering on
live horseraces and specified bingo games. Subsection (4)(a)
relates to horseracing. It currently authorizes the Legislature
to enact “laws providing for the licensing and regulation of
wagering on the results of horseraces, wherever run, either
within or outside the state, by the parimutuel method, when
such wagering is conducted by licensees within a licensed
racetrack enclosure.”
Article III, § 24, does not define “parimutuel” betting.
Generally, it is a gambling system in which the bettor has
2
See, State ex rel. Stenberg v. Moore, 253 Neb. 535, 571 N.W.2d 317(1997); State ex rel. Douglas v. Gradwohl, 194 Neb. 745, 235 N.W.2d 854(1975); Anderson v. Herrington, 169 Neb. 391, 99 N.W.2d 621 (1959).
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 977
Cite as 288 Neb. 973a stake in all wagers placed on a race in proportion to
the money that the bettor waged.3 Section 2-1207 allows a
licensee to deduct a percentage from all wagers placed on
a race and divide the remaining pool among those holding
winning tickets. The Legislature has authorized parimutuel
betting on live horseraces at enclosed, licensed racetracks.
The race can be conducted at that track or simulcast from
another licensed track.4 In 1988, the voters adopted an amend-
ment to article III, § 24, to permit wagering on “horseraces,
wherever run, either within or outside of the state, . . . when
such wagering is conducted by licensees within a licensed
racetrack enclosure.”5
In 2010, three senators introduced a bill to authorize the
State Racing Commission to “license and regulate parimutuel
wagering on historic horseraces.”6 In the bill’s statement of
intent, the introducer stated that the bill would provide “an
additional mode of horse race wagering inside the prem-
ises of a licensed horse racetrack” by allowing the operators
to “install and operate Instant Racing Terminals.”7 But the
Attorney General’s office issued an opinion that this court
would likely determine the bill was unconstitutional under
article III, § 24.8
The Attorney General’s office concluded that historical
horseracing referred to a patented wagering system that was
discussed by the Wyoming Supreme Court in a 2006 deci-
sion. That court held that instant racing parimutuel wagering
terminals were illegal gambling devices and that the Wyoming
Pari-mutuel Commission had no power to authorize them.9 The
3
See, Neb. Rev. Stat. § 2-1207 (Reissue 2012); State ex rel. Stenberg v.
Omaha Expo. & Racing, 263 Neb. 991, 644 N.W.2d 563 (2002).
4
See Neb. Rev. Stat. §§ 2-1224(2) and 2-1225(7) (Reissue 2012).
5
See 1988 Neb. Laws, L.R. 15.
6
See L.B. 1102, Judiciary Committee, 101st Leg., 2d Sess. (Jan. 21, 2010).
7
See Introducer’s Statement of Intent, L.B. 1102, Judiciary Committee,
101st Leg., 2d Sess. (Feb. 10, 2010).
8
Att’y Gen. Op. No. 10009 (Mar. 29, 2010).
9
See Wyoming Downs Rodeo Events, LLC v. State, 134 P.3d 1223 (Wyo.
2006).
Nebraska Advance Sheets
978 288 NEBRASKA REPORTS
Nebraska Attorney General’s office explained the new wager-
ing system:
The “Instant Racing” system allows bettors to wager on
the results of previously run or “historic” races through
electronic “Instant Racing Terminals” [“IRTs”]. The
machines reportedly can access over 200,000 historic
races. Wagers are made by coin or currency. Players
can utilize [a] limited Daily Racing Form [for] past per­
formance data (i.e. winning percentages, average earn-
ings per start, trainer and jockey success, etc.) provided
in graphic form before making their selections. The data
is provided in such a way that bettors cannot identify
the exact race. The machines contain a video screen
which allows bettors to view the entire race after plac-
ing their wagers, or only a short clip of the stretch run
of the race.
. . . Unlike most parimutuel wagering, where many
wagers are made on a single race, Instant Racing involves
wagers on many different races. Winners receive gradu-
ated payoffs based on their correct selection of the order
of finish. Payoffs are also determined by timing - the bet-
tor who hits first receives the highest payoff.
In appearance and operation, IRTs resemble slot
machines or video lottery devices. The “bells and whis-
tles” associated with slot machines or video lottery
devices are all present (except for the pull-handle).10
The Attorney General’s office concluded that wagering
through instant racing terminals (IRT’s) was inconsistent with
the type of wagering allowed under article III, § 24. The opin-
ion pointed out that § 24 allows bettors to wager on simulcast
horseraces from another state, but not on races conducted at
another time. Ultimately, the office concluded that because
of the similarity between IRT’s and slot machines, this court
would probably agree with the Wyoming Supreme Court that
IRT’s were impermissible gambling devices. After this opinion
10
Att’y Gen. Op. No. 10009, supra note 8.
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 979
Cite as 288 Neb. 973was issued, the historic horseracing bill was indefinitely post-
poned in April 2010.11
In January 2013, Senator Scott Lautenbaugh introduced
L.R. 41CA, the current proposed constitutional amendment
to article III, § 24(4).12 In his statement of intent, Senator
Lautenbaugh stated that the proposed measure, together with a
bill he was also introducing, would ensure the use of IRT’s at
horseracing facilities in Nebraska. The IRT’s, as an additional
mode of wagering on horseracing, would provide revenue to
the state and its licensed racetracks.13 L.R. 41CA would expand
the type of wagering the Legislature can authorize to include
“live or replayed” horseraces. Originally, the resolution did
not appropriate any new or existing tax revenues.14 Instead,
the taxes and appropriations of tax revenues were set out in
L.B. 590,15 the bill that accompanied L.R. 41CA.
Currently, the Legislature places a tax on parimutuel wager-
ing. Neb. Rev. Stat. § 2-1209 (Reissue 2012) authorizes the
State Racing Commission to pay its own expenses and staff
compensation out of these revenues first. It also requires the
Commission to maintain a reserve fund that does not exceed
10 percent of the funds used for the commission’s expenses.
And any excess funds must be credited to the state’s gen-
eral fund.16
If it had passed, L.B. 590 would have immediately autho-
rized the installation of IRT’s. It would not have changed the
existing tax scheme, but it would have imposed a separate and
new tax on historical horseracing wagers. After paying admin-
istrative expenses, one-half of the new tax revenues would
11
See Legislative Journal, 101st Leg., 2d Sess. 1229, 1467 (2010).
12
See Legislative Journal, 103d Leg., 1st Sess. 280-81 (2013).
13
See Introducer’s Statement of Intent, L.R. 41CA, General Affairs
Committee, 103d Leg., 1st Sess. (Feb. 11, 2013).
14
See Legislative Journal, supra note 12.
15
See L.B. 590, General Affairs Committee, 103d Leg., 1st Sess. (Jan. 23,
2013).
16
See § 2-1209.
Nebraska Advance Sheets
980 288 NEBRASKA REPORTS
have been paid to the State Racing Commission’s cash fund for
equine therapy programs (for veterans and youths). The other
half would have been credited to the Compulsive Gamblers
Assistance Fund.17
After contentious floor debates, L.B. 590 was indefi-
nitely postponed at Senator Lautenbaugh’s request.18 But the
Legislature advanced L.R. 41CA to the select file19 and car-
ried it over to the next session.20 In March 2014, Senator
Lautenbaugh filed an amendment to L.R. 41CA.21 Amendment
1910 included appropriations for all proceeds from taxes on
“wagering by the parimutuel method.”22 Similar to the appro-
priation schemes under the current statutes and the unsuc-
cessful L.B. 590, the proposed new appropriations under the
amendment would require “regulatory expenses” to be paid
first from the tax revenues.23 But unlike the proposed new tax
and appropriations under L.B. 590, amendment 1910 does not
limit its proposed new appropriations to tax revenues from
only historical horseracing wagers. Instead, amendment 1910
would also change the way that existing tax revenues from live
horseracing wagers must be appropriated. That is, those rev-
enues would not be used to maintain a reserve fund, and excess
funds would not be credited to the state’s general fund.
In April 2014, L.R. 41CA, as modified by amendment 1910,
passed by the required three-fifths majority of the Legislature.24
The final version would amend article III, § 24, as follows:
(4)(a) Nothing in this section shall be construed to pro-
hibit (a) the enactment of laws providing for the licens-
ing and regulation of wagering on the results of live or
17
See L.B. 590, General Affairs Committee, 103d Leg., 1st Sess. (Jan. 23,
2013).
18
See Legislative Journal, supra note 12, 1st Sess. 652, 684.
19
See id. at 683-84, 716-18.
20
See Legislative Journal, 103d Leg., 2d Sess. 2, 69 (2014).
21
See id. at 757.
22
Id.
23
Id.
24
See id. at 1428-29.
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 981
Cite as 288 Neb. 973replayed horseraces, wherever run, either within or out-
side of the state, by the parimutuel method, when such
wagering is conducted by licensees within a licensed
racetrack enclosure. The state’s proceeds from a tax
placed on wagering by the parimutuel method shall be
appropriated by the Legislature for the costs of regulating
wagering by the parimutuel method and for the follow-
ing purposes:
(i) Forty-nine percent of the money remaining after the
payment of regulatory expenses shall be used for elemen-
tary and secondary education statewide;
(ii) Forty-nine percent of the money remaining after the
payment of regulatory expenses shall be used to reduce
property taxes statewide; and
(iii) Two percent of the money remaining after the pay-
ment of regulatory expenses shall be transferred to the
Compulsive Gamblers Assistance Fund.25
Section 2 of L.R. 41CA requires the resolution to be submit-
ted to the electors with the following ballot language:
A constitutional amendment to provide for enactment
of laws providing for licensing and regulation of wager-
ing on live or replayed horseraces, wherever run, either
within or outside of the state, by the parimutuel method,
when such wagering is conducted by licensees within a
licensed racetrack enclosure, and to require appropriation
of certain parimutuel taxes for regulation of parimutuel
wagering, for education, for property tax relief, and for
the Compulsive Gamblers Assistance Fund.
For
Against26
2. Laws and Facts R elevant to R elator’s
Challenge to P roposed Amendment
Neb. Const. art. XVI, § 1, governs the procedure by which
the Legislature may propose amendments to the constitution.
Generally, a proposed amendment must be published and
25
2014 Neb. Laws, L.R. 41CA.
26
See id., § 2.
Nebraska Advance Sheets
982 288 NEBRASKA REPORTS
submitted to the electorate on a separate ballot for approval
or rejection at the next general election or at a special elec-
tion if called for by a four-fifths vote of the Legislature.
And under the separate-vote provision, “[w]hen two or more
amendments are submitted at the same election, they shall be
so submitted as to enable the electors to vote on each amend-
ment separately.”27
In addition, except for special elections, Neb. Rev. Stat.
§ 49-202.01(1) (Reissue 2010) imposes a statutory require-
ment: The Executive Board of the Legislative Counsel must
submit to the Secretary a clear, concise statement explaining
the effect of a vote for or against a proposed constitutional
amendment. The board must submit this statement 4 months
before the general election at which the voters will decide
whether to amend the constitution, and the statement must pre-
cede the proposed amendment on the ballot. Under Neb. Rev.
Stat. § 32-801 (Reissue 2008), the Secretary must certify the
contents of a statewide ballot 50 days before a primary or gen-
eral election. Here, the parties stipulated that the general elec-
tion takes place on November 4, 2014, and that the certification
date falls on September 12, 2014.
They also stipulated that the Executive Board of the
Legislative Council submitted the following statement to pre-
cede the proposed amendment:
A vote FOR this constitutional amendment would
authorize the Legislature to enact laws providing for
licensing and regulation of wagering on live or replayed
horseraces, wherever run, either within or outside of the
state, by the pari-mutuel method, when such wagering is
conducted by licensees within a licensed racetrack enclo-
sure and require appropriation of certain parimutuel taxes
for regulation of parimutuel wagering, for education, for
property tax relief, and for the Compulsive Gamblers
Assistance Fund.
A vote AGAINST this constitutional amendment would
not change existing provisions on wagering on the results
of horseraces.
27
See Neb. Const. art. XVI, § 1.
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 983
Cite as 288 Neb. 9733. Secretary R ejects Challenge
In July 2014, Loontjer’s counsel in this action asked the
Secretary to exercise his authority to review the legal suf-
ficiency of the proposed amendment. He contended in part
that the measure violated the separate-vote provision of article
XVI, § 1. He argued that L.R. 41CA presented at least two
amendments: one that authorizes a new type of gambling on
replayed horseraces, and one that directs tax revenues from
new and currently authorized wagering to be used for property
tax relief and education funding. He argued that some vot-
ers who strongly opposed the new form of gambling might
strongly support redirecting existing tax revenues on pari-
mutuel wagering to property tax relief. He argued that the
Legislature was unconstitutionally presenting two separate and
independent changes to the constitution for voters to approve
or reject in a single vote. And he contended that the Secretary
could decide a challenge to the legal sufficiency or facial con-
stitutionality of a proposed amendment before submitting it to
the electorate.
In a memorandum dated July 22, 2014, the Secretary denied
Loontjer’s counsel’s request. He stated that this court’s deci-
sions have held that challenges to the substantive constitution-
ality of a proposed ballot issue are not ripe for deciding before
an election. But he recognized that the Secretary can decide,
before an election, whether a ballot measure is legally suffi-
cient. He concluded that the challenge of whether the proposed
amendment violated the separate-vote provision was a chal-
lenge to the legal sufficiency of the ballot measure.
But the Secretary noted that unlike Nebraska’s statutes gov-
erning voter-initiated ballot measures, no statutes gave him the
authority to address, before an election, the legal sufficiency of
the Legislature’s proposed constitutional amendments. Relying
on a 1996 opinion from the Attorney General’s office,28 the
Secretary concluded that this lack of statutory authority meant
he could address constitutional defects in the Legislature’s
proposed amendments only if they were patently clear from the
face of the petition.
28
See Att’y Gen. Op. No. 96005 (Jan. 8, 1996).
Nebraska Advance Sheets
984 288 NEBRASKA REPORTS
The Secretary agreed that article XVI, § 1, is intended to
prevent logrolling, which he described as the practice of entic-
ing voters to vote for a proposition by combining a popular
measure with a dissimilar measure and requiring voters to vote
for or against the entire package. And the Secretary recognized
that to constitute a single subject matter, the provisions of a
proposed law must have a natural and necessary connection.
But he concluded that our case law provided no clear answer as
to whether L.R. 41CA satisfied the natural and necessary test.
Because he believed our case law supported reasonable pro and
con arguments to that question, he concluded that L.R. 41CA
was not “patently unconstitutional on its face.” The Secretary
stated that he would place the proposed amendment on the
November 2014 general election ballot “‘unless restrained
from doing so by the Courts.’”
III. ANALYSIS
1. Justiciability
[1,2] Challenges to proposed ballot measures present an
initial issue of ripeness, and we have not previously decided
whether a separate-vote challenge can be decided before an
election. Ripeness is a justiciability doctrine that courts con-
sider in determining whether they may properly decide a
controversy.29 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.30
[3,4] Because the outcome of an election is a contingent
future event, a challenge that a proposed ballot measure will
violate the substantive provisions of the U.S. or Nebraska
Constitution does not present a justiciable controversy. It is
not ripe for judicial determination because the voters might
vote to reject the measure.31 In contrast, a claim that a
29
Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).
30
Id.31
See Duggan v. Beermann, 249 Neb. 411, 544 N.W.2d 68 (1996).
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 985
Cite as 288 Neb. 973proposed ballot measure violates a constitutional or statutory
rule that governs the form of the measure or the procedural
requirements for its placement on the ballot is a challenge to
the legal sufficiency of a ballot measure.32 Such challenges are
ripe for resolution before an election.33
For example, in State ex rel. Lemon v. Gale,34 we decided a
preelection challenge that two voter-initiated ballot measures
to amend the constitution violated the resubmission clause
of article III, § 2. The resubmission clause is a constitutional
limitation on voter-initiated ballot measures, which clause
prohibits the electorate from resubmitting the “same measure,
either in form or in essential substance” more than once in 3
years. In State ex rel. Lemon, one ballot measure would have
authorized casino gambling; the other would have required the
Legislature to appropriate tax revenues from casino gambling
for kindergarten through 12th grade education. The Secretary
concluded that the measures were so similar to voter-initiated
measures submitted to the electorate 2 years earlier that they
violated the resubmission clause. He refused to place them
on the ballot. In a mandamus action, the district court con-
cluded that the casino measure was not barred by the constitu-
tion. On appeal, we held that the resubmission clause barred
both measures.
In deciding that the controversy was justiciable, we
explained that we were not deciding whether the measure
would “violate one or more substantive provisions of the state
or federal Constitution.”35 Instead, the issue was “whether
the measure is legally sufficient to be submitted to the vot-
ers” under the resubmission clause.36 And we relied, in part,
on two concurring opinions in an earlier decision that had
32
See, State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 347 (2006);
Lootnjer v. Robinson, 266 Neb. 902, 670 N.W.2d 301 (2003); Duggan,
supra note 31.
33
See id.34
State ex rel. Lemon, supra note 32.
35
Id. at 302, 721 N.W.2d at 355.
36
Id.
Nebraska Advance Sheets
986 288 NEBRASKA REPORTS
concluded an alleged violation of the single subject require-
ment for voter-initiated measures presents a preelection jus-
ticiable issue.37 We implicitly concluded that the rules were
similar in their restrictions of content or form. That is, under
these rules, a ballot measure’s contents are considered only to
determine whether it complies with the separate-vote require-
ment, regardless of the measure’s subject matter. The issue is
not whether the proposed measure’s provisions violate sub-
stantive constitutional law.38
[5] Contrary to the Secretary’s position, State ex rel. Lemon
is not distinguishable because it governs voter-initiated bal-
lot measures. Like the resubmission clause of article III, § 2,
the separate-vote provision of article XVI, § 1, is not focused
on whether a proposed constitutional amendment would
violate substantive constitutional laws—such as the Equal
Protection Clause or a prohibition against the impairment of
contracts. Instead, regardless of the measure’s subject matter,
the ­eparate-vote provision prohibits a ballot measure from
s
being presented to the voters unless its form requirements are
satisfied. The provision is directed at the manner of holding
the election itself. We conclude that an alleged separate-vote
violation challenges a ballot measure’s legal sufficiency and
presents a justiciable controversy before an election.
2. Secretary Has Authority to R eview the Legal
Sufficiency of the Legislature’s P roposed
Constitutional Amendments Even for
Defects That Are Not Obvious
The Secretary contends that unlike his statutory duty
to determine the legal sufficiency of voter-initiated bal-
lot meas­ res, he has no clear statutory authority to review
u
the legal sufficiency of the Legislature’s proposed consti-
tutional amendments. So he contends that the invalidity or
37
See Lootnjer, supra note 32 (Hendry, C.J., concurring in result) (Wright,
J., concurring; Gerrard, J., joins).
38
See Stewart v. Advanced Gaming Tech., 272 Neb. 471, 723 N.W.2d 65(2006).
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 987
Cite as 288 Neb. 973unconstitutionality of the Legislature’s proposed constitu-
tional amendments must be “‘patently’ clear.” We disagree
that a heightened standard for legal defects applies.
First, the Secretary relies on our 1984 decision State ex
rel. Brant v. Beermann39 to support his argument that the
invalidity of a proposed ballot measure must be patently clear
on its face before he can review its validity. In that case, we
considered a voter-initiated ballot measure. We set out a rule
of facial invalidity and provided an example of a facially
invalid proposal:
Unless the subject of the proposed petition on its face is
invalid or unconstitutional, [the Secretary] cannot pass
upon the validity or construction of any proposed law,
when the proposed petition is presented for filing pursu-
ant to § 32-704. An example of the Secretary of State’s
determining the validity of an initiative measure would be
found in an initiative petition proposing a statutory aboli-
tion of a constitutional office.40
Relying on this language, the Attorney General’s office deter-
mined in 1996 that the Secretary had authority to reject a ballot
measure only for obvious constitutional defects.41
But the example we cited in State ex rel. Brant shows
that we assumed the Secretary could reject a proposed ballot
measure for its substantive constitutional defects. To limit the
substantive challenges that the Secretary could address, we set
out narrowing principles, including the one above. In 1996,
however, we held in Duggan v. Beerman42 that a substantive
challenge to a proposed ballot measure was not ripe for judicial
decision before an election. So our implicit conclusion in State
ex rel. Brant that the Secretary could only reject a proposed
ballot measure for an obvious, substantive constitutional defect
was abrogated by our later decision in Duggan.
39
State ex rel. Brant v. Beermann, 217 Neb. 632, 350 N.W.2d 18 (1984).
40
Id. at 637, 350 N.W.2d at 21.
41
See Att’y Gen. Op. No. 96005, supra note 28.
42
Duggan, supra note 31.
Nebraska Advance Sheets
988 288 NEBRASKA REPORTS
Although in a couple of our cases we have repeated the
“facial invalidity” requirement,43 we have never held that the
Secretary cannot address a challenge to a ballot measure’s
legal sufficiency unless the defect is obvious on the face of the
measure. Such a requirement would be contrary to our reason-
ing in State ex rel. Wieland v. Beermann.44 There, we held that
the Secretary had a ministerial duty to review his own records
to determine whether explanatory statements describing the
proposed amendments were timely filed, to withhold propos-
als that did not meet the filing deadline, and to supervise the
conduct of general elections. We explained that the Secretary’s
duty to act was not discretionary just because he needed to
make factual determinations to carry out his statutory duties.
We noted that the Secretary also must make inquiries to
determine the sufficiency of signatures collected on initia-
tive petitions.
Our analysis in State ex rel. Wieland illustrates that a
legal defect in a proposed ballot measure will frequently not
be obvious. But if the Secretary has a duty to determine the
legal sufficiency of a proposed ballot measure, the necessity
of “[l]egal or factual determinations made at the outset of the
inquiry” do not affect the nature of his duty.45 We conclude
that State ex rel. Brant has no application to a challenge that a
ballot measure is legally defective in its failure to comply with
rules governing its form or procedural requirements.
Next, the Secretary argues that chapter 32, article 14, of the
Nebraska Revised Statutes more specifically authorizes him to
review the legal sufficiency of voter-initiated ballot measures
than does chapter 49, article 2, which governs constitutional
amendments proposed by the Legislature. For example, the
Secretary points to Neb. Rev. Stat. § 32-1409(3) (Reissue
2008), which gives him authority to “total the valid signa-
tures and determine if constitutional and statutory requirements
have been met.” While § 32-1409(3) supports the Secretary’s
43
See, Loontjer, supra note 32 (Wright, J., concurring; Gerrard, J., joins);
Duggan, supra note 31.
44
State ex rel. Wieland v. Beermann, 246 Neb. 808, 523 N.W.2d 518 (1994).
45
Id. at 815, 523 N.W.2d at 524.
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 989
Cite as 288 Neb. 973position that he has statutory authority to review voter initia-
tives, that section is primarily aimed at rules governing the
required signatures for voter-initiated ballot measures. And
we have concluded that the Secretary’s authority to determine
the legal sufficiency of ballot measures exceeds these types
of defects.46
Moreover, the Secretary’s statutory authority to review
voter-initiated ballot measures for their legal sufficiency is not
as explicit as it was before 1995. As we noted in Duggan, the
Legislature overhauled the election laws in January 1995.47
Before then, Neb. Rev. Stat. §§ 32-703.01 and 32-704(3)
(Reissue 1993) explicitly required the Secretary to determine
if an initiative was valid and sufficient. And no corresponding
statute exists under the current voter initiative statutes at chap-
ter 32, article 14.
Instead, under Neb. Rev. Stat. § 32-1411 (Reissue 2008),
the Secretary must place a measure on the ballot when it is
“regularly and legally filed.” Under Neb. Rev. Stat. § 32-1412(Reissue 2008), if the Secretary refuses to place the meas­
ure on the ballot, then any resident may apply for a writ
of mandamus from the district court for Lancaster County.
This statute assumes that the Secretary can reject an initia-
tive for failing to satisfy rules governing its presentation
to the voters, but it imposes no explicit duty to make this
determination. Nonetheless, we held in State ex rel. Lemon
that the Secretary had authority to determine whether a voter-
initiated ballot meas­ re violated the resubmission clause under
u
the Constitution. It is true that we noted the Secretary’s
authority to reject a proposed measure under § 32-1409(3).
But more broadly, the Secretary’s authority is consistent
with the Secretary’s duties under Neb. Rev. Stat. § 32-201(Reissue 2008).
Chapter 32, article 2, of the Nebraska Revised Statutes deals
with the Secretary’s duties for the conduct of all statewide
elections, and § 32-201 sets out his primary duty in that regard:
“The Secretary of State shall decide disputed points of election
46
See State ex rel. Lemon, supra note 32.
47
See Duggan, supra note 31.
Nebraska Advance Sheets
990 288 NEBRASKA REPORTS
law. The decisions shall have the force of law until changed by
the courts.” And in State ex rel. Wieland, we stated that under
Neb. Rev. Stat. §§ 32-1051 and 32-1052 (Reissue 1993), the
Secretary had a clear statutory duty to “‘decide disputed points
of election law,’” and to “‘supervise the conduct of primary
and general elections in this state.’”48
Section 32-1051 is now § 32-201, and the Secretary’s
duty to supervise elections is now found at Neb. Rev. Stat.
§ 32-202(1) (Reissue 2008). Although the statutes governing
the Legislature’s proposed constitutional amendments are in
chapter 49, article 2, of the Nebraska Revised Statutes, these
provisions were also separate from the general election laws
when we decided State ex rel. Wieland.49 And contrary to
the Secretary’s argument, we find no reason to distinguish
between his duties dealing with statutory deadlines and com-
pliance with the separate-vote provision. Moreover, § 49-207
(Reissue 2010) requires the Secretary to provide the form for
the ballot:
Whenever at a session of the Legislature more than
one amendment to the Constitution or proposition is sub-
mitted to a vote of the people, it shall be the duty of the
Secretary of State to provide the form of the ballots con-
taining such propositions or proposed amendments, which
are to be submitted to a vote of the people. . . . If more
than one amendment to the Constitution or proposition is
received at the same time, they shall be submitted in the
order they were approved by the Legislature.
It is true that part of § 49-207 clearly pertains to separate
resolutions to amend the constitution. But the consecutive
numbering required for separate proposals to amend the consti-
tution does not negate the Secretary’s statutory duty to provide
the form for all the Legislature’s proposed amendments.
Additionally, § 32-801 requires the Secretary to certify the
contents of all statewide ballots. His certification of proposed
ballot measures would be meaningless if this duty carried no
48
State ex rel. Wieland, supra note 44, 246 Neb. at 816, 523 N.W.2d at 525.
49
See Neb. Rev. Stat. ch. 49, art. 2 (Reissue 1993).
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 991
Cite as 288 Neb. 973responsibility to ensure that they satisfied legal requirements
for their presentation to the voters.
[6,7] Summed up, we conclude that the Secretary’s statu-
tory duties to provide the ballot form for the Legislature’s
proposed constitutional amendments and to certify its contents,
coupled with his duties to supervise elections and decide dis-
puted points of election laws, clearly require him to consider
whether a proposed amendment complies with the separate-
vote provision. Power vested in a governmental body or officer
carries with it the implied power to do what is necessary to
accomplish an express statutory duty, absent any other law that
restrains the implied power.50
So, the Secretary incorrectly argues that he lacks clear
statutory authority to address the legal sufficiency of the
Legislature’s proposed constitutional amendments before an
election. He has authority to determine whether they meet
form and procedural requirements. Accordingly, the Secretary
also incorrectly concluded that because he lacked this author-
ity, he can address such defects only if they are “‘patently’
clear” from the face of the petition. Instead, the standard that
a challenger must satisfy to keep a voter-initiated amendment
off the ballot should also be the standard that applies to the
Legislature’s proposed amendments. Applying the same stan-
dard to all proposed ballot measures is consistent with our
holdings that under the Nebraska Constitution, the Legislature
and electorate are coequal sources of legislation.51
[8] We hold that the Secretary cannot determine the sub-
stantive merits of the Legislature’s proposed constitutional
amendment. But in a legal sufficiency challenge, he has a duty
to reject a proposed amendment as legally defective for fail-
ing to satisfy form and procedural requirements. There is no
50
See, e.g., Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298(2010); L. J. Vontz Constr. Co. v. City of Alliance, 243 Neb. 334, 500
N.W.2d 173 (1993); 73 C.J.S. Public Administrative Law and Procedure
§ 109 (2004).
51
See, e.g., City of North Platte v. Tilgner, 282 Neb. 328, 803 N.W.2d 469(2011); Stewart, supra note 38.
Nebraska Advance Sheets
992 288 NEBRASKA REPORTS
requirement that the proposed amendment be “patently uncon-
stitutional on its face” before the Secretary must act.
Having determined the justiciability of the issue and the
Secretary’s authority to determine whether a legislatively pro-
posed amendment violates the separate-vote requirement, we
turn to the meaning of that requirement.
3. Separate-Vote P rovision Imposes a Single Subject
R equirement for the Legislature’s
P roposed Amendments
The separate-vote provision requires that “[w]hen two or
more amendments are submitted at the same election, they
shall be so submitted as to enable the electors to vote on each
amendment separately.”52 Lootnjer contends that L.R. 41CA
violates this requirement because voters cannot separately vote
on its separate provisions, i.e., its proposed amendment to per-
mit a new form of gambling and its proposed amendment to
restrict the Legislature’s appropriation authority. By dissecting
its appropriation requirements, Loontjer argues that L.R. 41CA
presents several different proposals for the voters to decide
and about which they could disagree. She contends that the
separate-vote provision is akin to a single subject rule, which
is intended to prohibit logrolling, and that L.R. 41CA fails to
meet the “‘natural and necessary connection’” test for deter-
mining whether a proposed measure presents a single subject
for a single vote.
The Secretary does not dispute that the separate-vote pro-
vision constitutes a single subject rule for the Legislature’s
proposed constitutional amendments. But he contends that
L.R. 41CA pertains to only one general subject: parimutuel
wagering on replayed horseraces. He contends that both pro-
visions of L.R. 41CA—authorizing wagering on replayed
horseraces and requiring parimutuel tax proceeds from wager-
ing on horseraces to be used for property tax relief and kin-
dergarten through 12th grade education—have a natural and
necessary connection to the same subject matter.
52
See Neb. Const. art. XVI, § 1.
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 993
Cite as 288 Neb. 973We agree with the parties that the separate-vote provision
under article XVI, § 1, imposes the same requirements as the
single subject provision under article III, § 2. But because we
have not previously decided this issue, we take the time to
explain our decision.
(a) Independent Subjects Must Be Separately
Presented to Voters
Under separate-vote provisions in state constitutions,
courts have almost invariably characterized unrelated sub-
ject matters within a single proposition as separate amend-
ments that must be submitted to the voters separately.53 An
early Wisconsin case influenced many other state courts. In
State ex rel. Hudd v. Timme,54 the Wisconsin Supreme Court
rejected an argument that any change to an existing constitu-
tional provision and any new provision must be considered a
separate amendment to be voted on separately in a ballot. It
reasoned that if each provision of a single plan had to be sep-
arately submitted to the voters and a crucial provision failed,
the provisions that passed might be effectively defeated.
It pointed out that in amendments under consideration, the
proposals to change the legislative session from annual to
biennial meetings was intimately connected to the provision
to change a legislator’s tenure from 1 to 2 years. Otherwise,
some legislators would have no duties. Voter approval of
only one provision would be absurd, so the provisions should
stand or fall together. Similarly, the proposed increase in
legislators’ salaries, while not intimately connected to the
session change, was sufficiently connected because the leg-
islators’ duties would be enlarged. The court set forth the
following rule:
We think amendments to the constitution, which the
[separate-vote provision] requires shall be submitted sep-
arately, must be construed to mean amendments which
have different objects and purposes in view. In order to
53
See Annot., 94 A.L.R. 1510 (1935).
54
State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N.W. 785 (1882).
Nebraska Advance Sheets
994 288 NEBRASKA REPORTS
constitute more than one amendment, the propositions
submitted must relate to more than one subject, and have
at least two distinct and separate purposes not dependent
upon or connected with each other. . . . [Legislators]
are not compelled to submit as separate amendments
the separate propositions necessary to accomplish a sin-
gle purpose.55
And the Arizona Supreme Court pointed out in 1934 that
numerous early state court decisions cited the Wisconsin case
with approval.56 Agreeing with the Wisconsin court, it held
that “‘to constitute more than one amendment, the propositions
submitted must relate to more than one subject, and have at
least two distinct and separate purposes not dependent upon or
connected with each other.’”57
[9-11] This court has decided only one case under the
separate-vote provision of article XVI, § 1. That decision was
issued in 1889 when the separate-vote provision was found at
Neb. Const. art. XV, § 1 (1875), and the Legislature had two
houses. But In re Senate File No. 3158 established two impor-
tant points that are relevant here. First, it illustrates that the
Legislature’s independent proposals to amend the constitution
must be presented to the voters for a separate vote even if they
are proposed in a single resolution. However, the proposals
under consideration were obviously contrary to each other,
so the case does not give much guidance for determining
independent subjects. Second, the court held that the consti-
tutional requirements for legislative bills do not apply to the
Legislature’s proposed amendments. Thus, the “single subject”
rule that applies to legislative bills under article III, § 14, does
not apply to ballot measures for constitutional amendments.
55
Id. at 336-37, 11 N.W. at 791.
56
See Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934). See, also, 94 A.L.R.,
supra note 53.
57
Kerby, supra note 56, 44 Ariz. at 217, 36 P.2d at 553.
58
In re Senate File No. 31, 25 Neb. 864, 41 N.W. 981 (1889).
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 995
Cite as 288 Neb. 973(b) Single Subject Rule for Legislative
Bills Does Not Apply to
Proposed Amendments
Other courts have held that the same standard that governs
single subject rules for ballot measures also applies to separate-
vote rules for constitutional amendments.59 Like single subject
rules, a separate-vote provision is often said to be aimed at the
practice of logrolling.60 We have said logrolling is the practice
of combining dissimilar propositions into one proposed amend-
ment so that voters must vote for or against the whole package
even though they would have voted differently had the propo-
sitions been submitted separately.61 It is sometimes described
as including favored but unrelated propositions in a proposed
amendment to ensure passage of a provision that might other-
wise fail.62
As explained below, we conclude that under the Nebraska
Constitution, the single subject rule for proposed voter ini-
tiatives should be the same as the separate-vote rule for the
Legislature’s proposed amendments. But consistent with our
decision in In re Senate File No. 31, we conclude that the
single subject rule for legislative enactments has no applica-
tion here. That provision is found in article III, § 14, which
provides that “[n]o bill shall contain more than one subject
. . . .” We construe this requirement quite liberally: “If an act
has but one general object, no matter how broad that object
may be, and contains no matter not germaine thereto, and the
59
See, Andrews v. Governor of Maryland, 294 Md. 285, 449 A.2d 1144(1982); Missourians to Protect Init. Proc. v. Blunt, 799 S.W.2d 824 (Mo.
1990); In re Initiative Petition No. 314, 625 P.2d 595 (Okla. 1980).
60
See, e.g., Kerby, supra note 56; Andrews, supra note 59; State ex rel.
Clark v. State Canvassing Bd., 119 N.M. 12, 888 P.2d 458 (1995).
61
City of North Platte, supra note 51; City of Fremont v. Kotas, 279 Neb.
720, 781 N.W.2d 456 (2010), abrogated in part on other grounds, City of
North Platte, supra note 51.
62
See, Advisory Opinion re Use of Marijuana, 132 So. 3d 786 (Fla. 2014);
Carter v. Burson, 230 Ga. 511, 198 S.E.2d 151 (1973).
Nebraska Advance Sheets
996 288 NEBRASKA REPORTS
title fairly expresses the subject of the bill, it does not violate
Article III, section 14, of the Constitution.”63
But as Chief Justice Hendry pointed out in 2003, this court
has previously recognized that a stricter standard should apply
when considering the validity of a constitutional amendment,
as distinguished from a legislative bill to enact or amend a
statute.64 In State, ex rel. Hall, v. Cline,65 we held that the
Legislature’s proposed amendment was not validly adopted
when the Legislature followed a statute for publishing notice
of the vote to amend, but the statutory requirements did not
comply with the constitutional requirements for notice. In
considering whether the Legislature had substantially com-
plied with constitutional requirements, we stated that a court
should “consider the seriousness of the business in which we
are engaged. A legislative act may be amended or repealed
at any succeeding session of the Legislature. A constitutional
provision is intended to be a much more fixed and perma-
nent thing.”66
Similarly, in Omaha Nat. Bank v. Spire,67 we stated that the
significant difference between labeling an initiative petition as
a proposed statute or constitutional amendment would obvi-
ously affect whether a petition signer or voter would support
the initiative:
The differences between a law enacted by the initia-
tive procedure and an amendment are obvious and great.
While a law enacted by the initiative process may not be
vetoed by the Governor of the state (article III, § 4), any
law may later be repealed by the Legislature. An amend-
ment to the Constitution, on the other hand, may not be
repealed by the Legislature, but only by the people in a
subsequent amendment to the Constitution.
63
Anderson v. Tiemann, 182 Neb. 393, 408-09, 155 N.W.2d 322, 332 (1967).
64
See Loontjer, supra note 32 (Hendry, C.J., concurring in result), quoting
State, ex rel. Hall, v. Cline, 118 Neb. 150, 224 N.W. 6 (1929).
65
See State, ex rel. Hall, supra note 64.
66
Id. at 155, 224 N.W. at 8.
67
Omaha Nat. Bank v. Spire, 223 Neb. 209, 218-19, 389 N.W.2d 269, 276
(1986).
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 997
Cite as 288 Neb. 973Like the labeling of an initiative petition, the separate-vote
provision of article XVI, § 1, is a rule intended to avoid voter
confusion when deciding whether to support a proposed change
in the constitution. But more important, it is intended to prevent
the practice of logrolling in amending the State’s fundamental
law. Because constitutional amendments are difficult to change
once enacted, we hold that the liberal single subject standard
that applies to legislative bills under article III, § 14, does not
apply to proposed constitutional amendments. We now turn to
what that standard should be.
4. Natural and Necessary Test Applies
to Separate-Vote P rovision
(a) History of Constitutional Amendments Shows Single
Subject Requirements for Voter Initiatives
Should Govern Legislature’s
Proposed Amendments
Article III, § 2, governs voter-initiated proposals for laws and
constitutional amendments and imposes two form requirements
that are relevant here: “The constitutional limitations as to the
scope and subject matter of statutes enacted by the Legislature
shall apply to those enacted by the initiative. Initiative meas­
ures shall contain only one subject.” In contrast, the separate-
vote requirement of article XVI, § 1, for the Legislature’s
proposals provides that “[w]hen two or more amendments are
submitted at the same election, they shall be so submitted as
to enable the electors to vote on each amendment separately.”
But as explained, despite the different language of these provi-
sions, single subject and separate-vote ballot rules are aimed at
the same logrolling problem. This conclusion is supported by a
1998 amendment to article III, § 2.
The requirement in article III, § 2, that voter-initiated stat-
utes shall be governed by the same constitutional limitations
on their scope and subject matter as statutes enacted by the
Legislature has been part of the Constitution since 1912.68 So
the single subject requirement that applies to legislative bills
also applies to voter-initiated statutes.
68
See 1911 Neb. Laws, ch. 223, § 1A, p. 671.
Nebraska Advance Sheets
998 288 NEBRASKA REPORTS
[12] But the second sentence of the quoted requirements for
initiatives—i.e., that initiative measures shall contain only one
subject—was adopted by the voters in 1998.69 Because it was
added later, it necessarily implies a requirement that exceeds
the requirement that the subject matter of initiatives shall be
subject to the same requirements as legislative enactments. It
is a fundamental principle of constitutional interpretation that
each and every clause within a constitution has been inserted
for a useful purpose.70 And the legislative history of the reso-
lution proposing the amendment shows that it was intended
to equalize the requirements for ballot measures proposed
by the voters and constitutional amendments proposed by
the Legislature.
The amendment was apparently a response to two opinions
from the Attorney General in 1995 and 1996.71 In short, the
Attorney General concluded that we would probably apply
the same test to all constitutional amendments—whether pro-
posed by the Legislature or the voters—and that we would
require a separate vote on its provisions unless they met the
test for a single subject. But at that time, article III, § 2, did
not explicitly include a separate-vote provision or a single
subject provision. The committee hearing shows that senators
were concerned about the potential for voter confusion and
fraud in the initiative process. The amendment was intended to
clarify that all ballot measures to enact or change laws or con-
stitutional provisions, whether voter initiatives or legislatively
proposed constitutional amendments, were subject to the same
requirement of presenting only one subject to the electorate for
a single vote.72
[13] In sum, our constitutional history and the opinions
of other state courts support our conclusion that the single
69
See 1997 Neb. Laws, L.R. 32CA.
70
Banks v. Heineman, 286 Neb. 390, 837 N.W.2d 70 (2013).
71
See Att’y Gen. Ops. Nos. 95089 (Nov. 13, 1995) and 96005, supra
note 28.
72
See Government, Military and Veterans Affairs Committee Hearing, L.R.
32CA, 95th Leg., 1st Sess. (Jan. 24, 1997).
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 999
Cite as 288 Neb. 973subject rule for voter initiatives and the separate-vote provi-
sion for the Legislature’s proposed amendments should be
construed as imposing the same ballot requirements: A voter
initiative or a legislatively proposed constitutional amend-
ment may not contain two or more distinct subjects for voter
approval in a single vote.
(b) Natural and Necessary Connection Test
Applies to All Single Subject
Ballot Requirements
Our conclusion that all ballot measures for laws or consti-
tutional amendments are limited by the requirement that they
present only one subject matter to the voters does not end our
analysis. We have never decided what test should apply for
the single subject requirement under article III, § 2 (for voter-
initiated proposals), or article XVI, § 1 (for the Legislature’s
proposed amendments). But in Loontjer v. Robinson,73 three
concurring justices opined that our decision in Munch v. Tusa74
should govern the single subject requirement.
In Munch, we considered the validity of a proposed amend-
ment to a city charter. We adopted a rule that courts have
applied to state constitutional amendments. We cited a general
rule providing that if the separate provisions of a proposed
amendment are all “‘germane’” to the general subject matter,
they may be submitted to the voters in a single vote.75 And
we cited a case concluding that the controlling consideration
is an amendment’s singleness of purpose and the relationship
of the details to its general subject. We adopted the following
test for the single subject requirement: “[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.”76
73
See Loontjer, supra note 32 (Hendry, C.J., concurring in result) (Wright,
J., concurring; Gerrard, J., joins).
74
Munch v. Tusa, 140 Neb. 457, 300 N.W. 385 (1941).
75
Id. at 463, 300 N.W. at 389.
76
Id.
Nebraska Advance Sheets
1000 288 NEBRASKA REPORTS
We have also applied a common-law single subject test
to municipal voter initiatives: “The common-law single sub-
ject rule of form that we adopted in Drummond [v. City of
Columbus77] preserves the integrity of the municipal electoral
process by invalidating proposed ordinances that require vot-
ers to approve distinct and independent propositions . . . .”78
We reasoned that “if a proposed ballot measure combines two
distinct proposals so that voters are compelled to vote for or
against both when they might not do so if separate questions
were submitted, then they cannot express a clear preference on
both proposals.”79 We held that
a proposed municipal ballot measure is invalid if it would
(1) compel voters to vote for or against distinct propo-
sitions in a single vote—when they might not do so if
presented separately; (2) confuse voters on the issues they
are asked to decide; or (3) create doubt as to what action
they have authorized after the election.80
The first component of the test for municipal ballot meas­
ures reflects the prohibition against logrolling that is the
primary purpose of the separate-vote provision. And we spe-
cifically stated that “a municipal ballot measure with separate
provisions does not violate the single subject rule if the provi-
sions have a natural and necessary connection with each other
and together are part of one general subject.”81
[14] It would be a strange result if we were more concerned
about the integrity of municipal elections than state-wide
votes to amend the fundamental law of Nebraska. And other
courts agree that separate provisions in proposed constitutional
amendments must be closely related in purpose to be presented
77
Drummond v. City of Columbus, 136 Neb. 87, 285 N.W. 109 (1939).
78
City of North Platte, supra note 51, 282 Neb. at 348, 803 N.W.2d at
486-87.
79
Id. at 349, 803 N.W.2d at 487.
80
Id.
81
Id. at 350, 803 N.W.2d at 487 (emphasis supplied), citing City of Fremont,
supra note 61.
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 1001
Cite as 288 Neb. 973to the electorate for a single vote.82 We conclude that the
natural and necessary connection test that applies to proposed
amendments for city charters and municipal ballot measures
also applies to the single subject requirement for voter initia-
tives under article III, § 2, and the separate-vote provision of
article XVI, § 1. We turn to its application here.
5. Application of Natural and Necessary
Connection Test
To recap, Loontjer contends that L.R. 41CA violates the
natural and necessary connection test because voters cannot
separately vote on its separate provisions to permit a new form
of gambling and to change the appropriation of taxes collected
from parimutuel wagering.
The Secretary contends that L.R. 41CA does not violate
the natural and necessary connection test because its “broad,
general subject matter” is parimutuel wagering on horseracing
and all aspects of the amendment have a natural and necessary
connection to this general subject matter.83
[15] Of course, whether a proposed amendment’s provisions
deal with a single subject matter depends on how narrowly
or broadly the subject matter is defined. But we reject the
Secretary’s argument that the subject matter of L.R. 41CA is
broad enough to encompass any topic connected to parimutuel
wagering related to horseracing. Under this reasoning, the
Legislature could propose in a single amendment to change
any law dealing with a subject as broad as gambling, or the
organization of government or schools. Instead, as we said
in Munch, “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.”84 Clearly,
82
See, e.g., McLaughlin v. Bennett, 225 Ariz. 351, 238 P.3d 619 (2010);
Moore v. Shanahan, 207 Kan. 645, 486 P.2d 506 (1971); Cambria v.
Soaries, 169 N.J. 1, 776 A.2d 754 (2001); Pennsylvania Prison Soc. v.
Com., 565 Pa. 526, 776 A.2d 971 (2001).
83
Reply brief for respondent at 2.
84
Munch, supra note 74, 140 Neb. at 463, 300 N.W. at 389.
Nebraska Advance Sheets
1002 288 NEBRASKA REPORTS
the intent of this rule was to clarify that under a single subject
ballot requirement, the general subject of a proposed ballot
measure is defined by its primary purpose, and the facts of
Munch support that conclusion.
In Munch, a city council proposed an amendment to the
city’s charter to create a uniform system of pensions for fire-
fighters and police officers. The employees’ pensions were set
out in different articles of the charter, and the firefighters had
previously received better pension benefits. So to equalize the
plans, the amendment necessarily proposed several changes.
But all the amendment’s provisions were closely related to the
amendment’s single purpose “to place the firemen and police-
men of the city on the same pension basis.”85 We rejected
the plaintiff’s argument that the amendment presented a dual
proposition and that voters should be able to decide whether
to change each plan separately. We concluded that voters were
asked to decide a single proposition, i.e., whether to adopt a
unified pension fund plan.
In contrast, we held that a municipal ballot measure in City
of North Platte v. Tilgner86 violated the common-law single
subject rule because the voters were asked to approve of
distinct and independent propositions in a single vote. There,
the city had previously approved an occupation tax to pay
for a visitor center and indefinitely fund its operation. It then
entered into an option contract to purchase a visitor center
from a private group, and the private group obtained a loan to
fund the project. The initiative’s proponents sought to amend
the occupation tax ordinance so that tax revenues could only
be used to pay off the loan to fund the project. After the
debt was retired, the initiative would have prohibited the
city from using the revenues to operate the center. Instead, it
would have required the city to use the revenues for property
tax relief.
We concluded that the two proposals—prohibiting the use of
an occupation tax for a visitor center’s operating expenses and
85
Id. at 459, 300 N.W. at 387.
86
City of North Platte, supra note 51.
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 1003
Cite as 288 Neb. 973requiring the city to use the revenues for property tax relief—
did not have a natural and necessary connection:
These amendments were not separate provisions of
the same law. But even if they could be construed as
such, we conclude that they presented independent and
distinct proposals instead of having a natural and neces-
sary connection. . . . Because the petition presented dis-
tinct but dual propositions for a single vote, voters could
not express a preference on either without approving or
rejecting both. Because the appellants’ referendum peti-
tion would not permit voters to express a clear preference
on dual propositions, it violated the single subject rule
and was invalid.87
[16] Our conclusion in City of North Platte that the ini-
tiative’s proposals were not separate provisions of the same
law under the single subject requirement was clearly tied
to their lack of any unifying purpose. Without a unifying
purpose, separate proposals in a ballot measure necessar-
ily present independent and distinct proposals that require a
separate vote.
Here, the Legislature’s primary purpose in L.R. 41CA is to
legalize a new form of wagering under Neb. Const. art. III,
§ 24. That purpose is apparent from the text of the proposed
amendment and its legislative history. Senator Lautenbaugh
and other proponents argued at the committee hearing that
the proposed amendment would save jobs in the struggling
horseracing industry by allowing yearlong wagering at race-
tracks. Neither the amendment’s text, the statement of intent,88
nor the legislative history showed that a primary purpose for
the amendment was to create new funding for property tax
relief and education by requiring that all tax revenues from
parimutuel wagering be used for such purposes. The possibility
of using existing parimutuel tax revenues for property tax relief
and education was not even proposed until the resolution faced
87
See id. at 351, 803 N.W.2d at 488.
88
See Introducer’s Statement of Intent, L.R. 41CA, General Affairs
Committee, 103d Leg., 1st Sess. (Feb. 11, 2013).
Nebraska Advance Sheets
1004 288 NEBRASKA REPORTS
substantial opposition from some members of the Legislature.
So the question is whether the proposal to use tax revenues
from parimutuel wagering for property tax relief and education
had a natural and necessary connection to legalizing a new
form of wagering.
The answer is no. The appropriation proposal’s only con-
nection 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 edu-
cation. But they would be presented with a take-it-or-leave-it
proposition. And this type of proposition 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 revenues continue to be credited to the state’s
general fund, instead of devoted exclusively to property tax
relief and education.
That voters might reasonably diverge on these separate
proposals was amply illustrated in 1991, when the Legislature
presented two separate ballot issues for the 1992 general elec-
tion. The first ballot measure asked voters to authorize a state
lottery. The second one asked voters to approve a specified
distribution of the funds, if the lottery were approved.89 The
voters approved the first proposal, but not the second. Later, in
2004, the Legislature successfully passed a proposal to amend
the constitution to appropriate lottery funds under the cur-
rent method.90
The 1992 election illustrates that even if a majority of vot-
ers want to authorize a new form of wagering, they would not
necessarily agree on the appropriations of tax revenues from
it. That election also shows that the Legislature had previ-
ous experience with the proper means of presenting voters
with distinct and independent proposals. We hold that because
L.R. 41CA’s provisions did not have a natural and necessary
89
See 1991 Neb. Laws, L.R. 24CA.
90
See, Neb. Const. art. III, § 24(3); 2004 Neb. Laws, L.R. 209CA.
Nebraska Advance Sheets
STATE EX REL. LOONTJER v. GALE 1005
Cite as 288 Neb. 973connection, the Legislature was required to present the propos-
als to the voters for separate votes.
6. Secretary Must Withhold L.R. 41CA
From the Ballot
In Loontjer’s petition, she sought a writ of mandamus
requiring the Secretary to deny certification and withhold
the proposed amendment from the ballot. Under the Uniform
Declaratory Judgments Act,91 she also sought a declaration that
the ballot language was invalid for three reasons: (1) the bal-
lot language violates the separate-vote provision under Neb.
Const. art. XVI, § 1; (2) the explanatory statement and ballot
title violates the statutory requirements under § 49-202.01(1);
and (3) the ballot language violates the free election clause
under Neb. Const. art. I, § 22. Finally, she sought attorney fees
and costs under Neb. Rev. Stat. §§ 25-2165 (Reissue 2008)
and 25-21,158.
[17] We granted jurisdiction for an original cause of action
involving revenue, in which the State has a direct interest, and
a request for a writ of mandamus. When a party has invoked
our original jurisdiction under one of the causes of action spec-
ified in Neb. Const. art. V, § 2, we may exercise our author-
ity to grant requested declaratory relief under the Uniform
Declaratory Judgments Act or injunctive relief.92
[18] Although the appropriate relief might be character-
ized in part as declaratory or injunctive, Loontjer argues that
the Secretary was required by law to refuse to certify the
Legislative proposal for placement on the November 2014
ballot, that he refused, and that this court should compel
him to do so. Thus, she seeks a writ of mandamus. A court
issues a writ of mandamus only when (1) the relator has a
clear right to the relief sought, (2) a corresponding clear duty
91
See Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2008).
92
See, e.g., Omaha Expo. & Racing, supra note 3; State ex rel. Wieland v.
Moore, 252 Neb. 253, 561 N.W.2d 230 (1997); State ex rel. Stenberg v.
Douglas Racing Corp., 246 Neb. 901, 524 N.W.2d 61 (1994); Henry v.
Rockey, 246 Neb. 398, 518 N.W.2d 658 (1994); State, ex rel. Smrha, v.
General American Life Ins. Co., 132 Neb. 520, 272 N.W. 555 (1937).
Nebraska Advance Sheets
1006 288 NEBRASKA REPORTS
exists for the respondent to perform the act, and (3) no other
plain and adequate remedy is available in the ordinary course
of law.93
Because we have held that the Secretary had the duty to
determine whether a legislatively proposed amendment vio-
lates the separate-vote requirement, that the Legislature was
required to present L.R. 41CA’s proposals to the voters for sep-
arate votes, and that the resolution does not satisfy that require-
ment, we have recognized that Loontjer had a clear right to the
relief she sought and that the Secretary had a corresponding
clear duty to perform the act—that is, to refuse to certify the
proposal for submission to the voters at the November 2014
election. The Secretary does not contend that Loontjer had
any other plain and adequate remedy available to her in the
ordinary course of law, and we also conclude that she did not.
Thus, she has established all of the elements of mandamus and
is entitled to a writ of mandamus requiring the Secretary to
deny certification and withhold the proposed amendment from
the ballot. Because we conclude that the resolution is uncon-
stitutional under the separate-vote provision, we do not address
Loontjer’s additional claims that it was invalid because it vio-
lated the free election clause and because the accompanying
explanatory statement was legally insufficient.94
IV. CONCLUSION
We conclude that L.R. 41CA violates the separate-vote pro-
vision of Neb. Const. art. XVI, § 1. We express no opinion on
the substantive merits of either provision of the proposal. We
issue a writ of mandamus directing the Secretary to not certify
the proposal presented by L.R. 41CA for placement on the
ballot for the November 2014 general election and to withhold
the proposed amendment from the ballot.
Writ of mandamus granted.
93
Mid America Agri Products v. Rowlands, 286 Neb. 305, 835 N.W.2d 720(2013).
94
See J.M. v. Hobbs, ante p. 546, 849 N.W.2d 480 (2014).