Banks v. Heineman ( 2013 )

Nebraska Advance Sheets
390 286 NEBRASKA REPORTS
Osorio’s failure to so much as allege the necessary elements
of relief under the postconviction statutes or § 29-1819.02,
we find the district court’s failure to articulate its reasoning
inconsequential.
CONCLUSION
We affirm the district court’s denial of Chiroy Osorio’s
motion to withdraw his plea and vacate his conviction.
Affirmed.
Steven Banks et al., each and all as individuals, property
owners, taxpayers, and as supervisors serving districts 1
through 7, all of the County of K nox, and County
of K nox, State of Nebraska, appellees and
cross-appellants, v. Dave H eineman,
Governor, et al., appellants
and cross-appellees.
___ N.W.2d ___
Filed August 2, 2013. No. S-12-723.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional is a question of law; accordingly, the Nebraska Supreme Court is obligated
to reach a conclusion independent of the decision reached by the court below.
2. Constitutional Law: Statutes: Presumptions. A statute is presumed to
be constitutional, and all reasonable doubts will be resolved in favor of its
constitutionality.
3. Taxation: Words and Phrases. An excise tax is a tax imposed on the manufac-
ture, sale, or use of goods or on an occupation or activity, and is measured by
the extent to which a privilege is exercised by the taxpayer, without regard to the
nature or value of the taxpayer’s assets.
4. Taxation. An excise tax is imposed upon the performance of an act.
5. ____. An excise tax includes taxes sometimes designated by statute or referred to
as “privilege taxes,” “license taxes,” “occupation taxes,” and “business taxes.”
6. Taxation: Property: Valuation. A property tax is levied on real or personal
property, with the amount of the tax usually dependent upon the value of the
property.
7. Constitutional Law: Intent. Constitutional provisions are not open to construc-
tion as a matter of course; construction is appropriate only when it has been
demonstrated that the meaning of the provision is not clear and that construction
is necessary.
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BANKS v. HEINEMAN 391
Cite as 286 Neb. 3908. Constitutional Law. It is a fundamental principle of constitutional interpreta-
tion that each and every clause within a constitution has been inserted for a
useful purpose.
9. Constitutional Law: Courts: Intent. In ascertaining the intent of a constitu-
tional provision from its language, a court may not supply any supposed omis-
sion, or add words to or take words from the provision as framed.
10. Constitutional Law. The Nebraska Constitution, as amended, must be read as
a whole.
11. Constitutional Law: Taxation. The constitutional prohibition against com-
mutation of taxes set forth in Neb. Const. art. VIII, § 4, does not apply to an
excise tax.
12. Constitutional Law: Statutes: Special Legislation. The focus of the prohibi-
tion against special legislation is the prevention of legislation which arbitrarily
benefits or grants special favors to a specific class. A legislative act constitutes
special legislation if it either (1) creates an arbitrary and unreasonable method of
classification or (2) creates a permanently closed class.
13. Special Legislation: Words and Phrases. A closed class is one that limits the
application of the law to a present condition, and leaves no room or opportunity
for an increase in the numbers of the class by future growth or development.
14. Special Legislation. The Legislature has the power to enact special legislation
where the subject or matters sought to be remedied could not be properly rem-
edied by a general law and where the Legislature has a reasonable basis for the
enactment of the law.
Appeal from the District Court for Lancaster County:
Paul D. M erritt, Jr., Judge. Reversed and remanded with
directions.
Jon Bruning, Attorney General, and L. Jay Bartel for
appellants.
David A. Domina, of Domina Law Group, P.C., L.L.O., and
John Thomas, Knox County Attorney, for appellees.
Heavican, C.J., Connolly, Stephan, Miller-Lerman, and
Cassel, JJ., and Inbody, Chief Judge.
Stephan, J.
Effective July 15, 2010, the Nebraska Legislature changed
the manner in which wind energy generation facilities in
Nebraska are taxed. The change exempted personal property
used by such facilities from the personal property tax and
imposed a new tax based on a facility’s nameplate capac-
ity. The legislation allowed taxpayers who had paid personal
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392 286 NEBRASKA REPORTS
property tax prior to 2010 to claim a credit against nameplate
capacity taxes assessed for 2010 and subsequent years. The
appellees, who are taxpayers and residents of Knox County,
Nebraska, brought this action challenging the constitutional-
ity of the credit. The district court for Lancaster County held
the credit was an unconstitutional commutation of taxes. We
reverse, because the credit is not unconstitutional.
I. BACKGROUND
The plaintiffs below and appellees herein are Steven Banks,
Jim Fuchtman, Jerry Hanefeldt, Norman Mackeprang, Virgil
Miller, Marty O’Connor, and Rayder Swanson. Each owns
real estate and personal property in Knox County and pays
taxes on such property. Each is also a member of the Knox
County Board of Supervisors. The county itself is also a named
plaintiff. We shall refer to them collectively as the “Knox
Countians.” The defendants below and appellants herein are
Dave Heineman, Governor of the State of Nebraska; Don
Stenberg, the Nebraska State Treasurer; and Douglas A. Ewald,
the Nebraska State Tax Commissioner. We shall refer to them
collectively as the “State officials.”
The Knox Countians filed a complaint seeking declaratory
and injunctive relief with respect to the nameplate capacity tax
credit authorized by Neb. Rev. Stat. § 77-6203(5)(b) (Cum.
Supp. 2012). The complaint alleged that the credit was uncon-
stitutional and void because it operated to commute a tax in
violation of Neb. Const. art. VIII, § 4, and constituted special
legislation prohibited by Neb. Const. art. III, § 18. The State
officials filed an answer in which they denied that the credit
was unconstitutional.
The case was tried on stipulated facts, which we summarize
here. Prior to 2010, Nebraska wind energy generation facilities,
including towers and turbines, were taxed as personal property
and depreciated over a 5-year period. After the 5-year period,
no further taxes were collected on the facilities. This taxing
system imposed steep upfront costs on wind generators and
created budget problems for local governments. To address
these issues and as part of legislation passed to encourage the
development of wind generation facilities in Nebraska, the
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BANKS v. HEINEMAN 393
Cite as 286 Neb. 390Nebraska Legislature enacted L.B. 1048, which was signed
into law and became effective on July 15, 2010.1
Section 11 of L.B. 1048 exempted from taxation any per-
sonal property “used directly in the generation of electric-
ity using wind as the fuel source.”2 This provision was later
amended to clarify that the exemption is for depreciable tan-
gible personal property.3 The effect of the amendment was to
remove all wind generation facilities from the personal prop-
erty tax rolls.
Sections 12 through 15 of L.B. 1048 simultaneously created
a new tax to be imposed on wind generation facilities known
as the nameplate capacity tax. Those sections are currently
codified at §§ 77-6201 to 77-6204. The nameplate capacity
tax is imposed annually on each wind generation facility.4 The
Nebraska Department of Revenue collects the tax and then dis-
tributes it to local taxing entities.5 The Legislature’s intent in
adopting the nameplate capacity tax was to “replace property
taxes currently imposed on wind infrastructure and depreciated
over a short period of time in a way that causes local budgeting
challenges and increases upfront costs for wind developers.”6
The idea was that the amount of tax paid by wind generators
would remain the same, but instead of being concentrated into
a 5-year period, it would be spread out over a period of 20 or
more years.
Section 77-6203(1) provides: “The owner of a wind energy
generation facility annually shall pay a nameplate capacity
tax equal to the total nameplate capacity of the commissioned
wind turbine of the wind energy generation facility multiplied
by a tax rate of three thousand five hundred eighteen dollars
per megawatt.” “Nameplate capacity” means the “capacity of a
wind turbine to generate electricity as measured in megawatts,
1
2010 Neb. Laws, L.B. 1048 (codified at Neb. Rev. Stat. §§ 77-6201 to
77-6204 (Cum. Supp. 2012)).
2
See Neb. Rev. Stat. § 77-202(9) (Supp. 2011).
3
2011 Neb. Laws, L.B. 360; § 77-202(9).
4
§ 77-6203(5)(b).
5
§§ 77-6203(5)(a) and 77-6204.
6
§ 77-6201(1).
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394 286 NEBRASKA REPORTS
including fractions of a megawatt.”7 The nameplate capacity
tax is imposed “beginning the first calendar year the wind
turbine is commissioned.”8 A wind generation facility com-
missioned prior to July 15, 2010, is subject to the nameplate
capacity tax “on and after January 1, 2010.”9 Wind generation
facilities owned or operated by certain governmental entities,
electric membership associations, and cooperatives are not sub-
ject to the nameplate capacity tax.10
Elkhorn Ridge Wind, LLC (Elkhorn Ridge), located in Knox
County, is the only wind energy generation facility in Nebraska
that paid personal property taxes prior to the effective date
of L.B. 1048. Elkhorn Ridge began commercial operation
in December 2008 and was assessed personal property taxes
on its wind generation equipment in 2009. Elkhorn Ridge
paid all of its assessed 2009 property taxes, in the amount of
$1,594,026. These taxes were distributed to various taxing
entities, including Knox County. Without the credit allowed by
§ 77-6203(5)(b), Elkhorn Ridge would be the only wind energy
generation facility required to pay both personal property tax
for tax years prior to the effective date of L.B. 1048 and the
nameplate capacity tax thereafter.
The Legislature was aware at the time it enacted L.B. 1048
that Elkhorn Ridge had paid personal property taxes on its
facility in 2009. In order to ensure that Elkhorn Ridge was
similarly situated with all other wind generation facilities in
Nebraska and was not double taxed, the Legislature enacted a
credit provision, codified at § 77-6203(5)(b), which states:
The amount of property tax on depreciable tangible per-
sonal property previously paid on a wind energy genera-
tion facility commissioned prior to July 15, 2010, which
is greater than the amount that would have been paid
pursuant to [the nameplate capacity tax] shall be credited
against any tax due under Chapter 77, and any amount
7
§ 77-6202(2).
8
§ 77-6203(5)(b).
9
Id.
10
§ 77-6203(2)(a).
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BANKS v. HEINEMAN 395
Cite as 286 Neb. 390so credited that is unused in any tax year shall be carried
over to subsequent tax years until fully utilized.
For tax year 2010, Elkhorn Ridge reported a nameplate capac-
ity tax of $284,958. Elkhorn Ridge invoked the credit provi-
sion of § 77-6203(5)(b) and was allowed a credit against its
2010 nameplate capacity tax for 2010, and retains a credit
balance based on the amount of 2009 personal property taxes
it paid.
The district court determined that the credit provision of
§ 77-6203(5)(b) “constitutes an improper commutation of taxes
by effectively reducing the 2009 taxes paid by [Elkhorn Ridge]
in Knox County in the form of a post-2009, future credit con-
trary to Neb. Const. art. VIII, § 4,” and was therefore unconsti-
tutional and void. The court found it unnecessary to determine
whether the credit was special legislation in contravention of
article III, § 18. It granted declaratory relief, but denied injunc-
tive relief in the absence of any evidence that the State officials
would continue to enforce a law declared to be unconstitu-
tional. The State officials commenced this timely appeal, and
the Knox Countians cross-appealed.
II. ASSIGNMENTS OF ERROR
The State officials assign that the district court erred in (1)
finding the credit against the nameplate capacity tax granted
by § 77-6203(5)(b) unconstitutionally commuted taxes and (2)
failing to find the credit was not special legislation. On cross-
appeal, the Knox Countians assign the district court erred in
failing to find the credit was special legislation.
III. STANDARD OF REVIEW
[1,2] Whether a statute is constitutional is a question of law;
accordingly, we are obligated to reach a conclusion indepen-
dent of the decision reached by the court below.11 A statute is
presumed to be constitutional, and all reasonable doubts will be
resolved in favor of its constitutionality.12
11
In re Interest of C.R., 281 Neb. 75, 793 N.W.2d 330 (2011); Yant v. City of
Grand Island, 279 Neb. 935, 784 N.W.2d 101 (2010).
12
Id.
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396 286 NEBRASKA REPORTS
IV. ANALYSIS
1. Commutation
Subject to exceptions not applicable here, Neb. Const. art.
VIII, § 4, provides:
[T]he Legislature shall have no power to release or dis-
charge any county, city, township, town, or district what-
ever, or the inhabitants thereof, or any corporation, or the
property therein, from their or its proportionate share of
taxes to be levied for state purposes, or due any munici-
pal corporation, nor shall commutation for such taxes be
authorized in any form whatever.
The State officials argue that this provision applies only to
property taxes and that the nameplate capacity tax is not a prop-
erty tax. The district court rejected this argument. Although it
characterized the nameplate capacity tax as an “excise tax,” it
noted that in Kiplinger v. Nebraska Dept. of Nat. Resources,13
we considered the merits of an argument that an excise tax
violated the constitutional prohibition against commutation of
taxes and concluded that it did not. Although acknowledging
that the question of whether article VIII, § 4, applied to an
excise tax was neither raised nor specifically considered by this
court in Kiplinger, the district court concluded that it was “not
dissuaded from following Kiplinger and analyzing the name-
plate capacity tax credit against Neb. Const. art. VIII, § 4.” We
now consider the question de novo.
(a) Nature of Nameplate
Capacity Tax
[3-6] An excise tax is a tax imposed on the manufacture,
sale, or use of goods or on an occupation or activity, and is
measured by the extent to which a privilege is exercised by the
taxpayer, without regard to the nature or value of the taxpay-
er’s assets.14 An excise tax is imposed upon the performance
of an act.15 We have also stated that an excise tax includes
13
Kiplinger v. Nebraska Dept. of Nat. Resources, 282 Neb. 237, 803 N.W.2d
28 (2011).
14
Anthony, Inc. v. City of Omaha, 283 Neb. 868, 813 N.W.2d 467 (2012).
15
Id.
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BANKS v. HEINEMAN 397
Cite as 286 Neb. 390taxes sometimes designated by statute or referred to as “privi-
lege taxes,” “license taxes,” “occupation taxes,” and “business
taxes.”16 In contrast, a property tax is levied on real or personal
property, with the amount of the tax usually dependent upon
the value of the property.17
The State officials argue that the nameplate capacity tax is
an excise tax because it is measured by the productive activ-
ity or capacity of a wind generation facility. But the Knox
Countians counter that it is not an excise tax because it is not
imposed upon an activity, but instead is imposed upon the
capacity to generate electricity, whether the equipment is used
or not. The Knox Countians contend that because it does not
matter whether the equipment is used, the tax is similar to a
tax on personal property. But at the same time, they contend
that the nameplate capacity tax “does not replace personal
property taxes.”18
We addressed a similar issue in Kiplinger. There, the tax at
issue was designated as an “occupation tax” and was imposed
on the “‘activity of irrigation.’”19 The landowners on whom
the tax was imposed argued it was actually a property tax in
disguise and as such was improperly imposed for a state pur-
pose. In rejecting this argument, we noted that the tax was not
a property tax in part because it was “not dependent upon the
value of the land being taxed.”20
Similarly, it is clear that the nameplate capacity tax here is
not dependent upon the value of the wind turbines and other
equipment used to generate electricity. Instead, it is generally
imposed on the privilege of owning wind generation facilities
in Nebraska and is not measured by the value of those assets.
For these reasons, we agree with the district court that it is an
excise tax.
16
State v. Galyen, 221 Neb. 497, 378 N.W.2d 182 (1985).
17
Kiplinger, supra note 13.
18
Brief for appellees at 30.
19
Kiplinger, supra note 13, 282 Neb. at 243, 803 N.W.2d at 36, quoting Neb.
Rev. Stat. § 2-3226.05 (Cum. Supp. 2008).
20
Id. at 251, 803 N.W.2d at 41.
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398 286 NEBRASKA REPORTS
(b) Applicability of Neb. Const.
art. VIII, § 4, to Excise Tax
With the exception of Kiplinger, all of our cases applying
the constitutional prohibition against the commutation of taxes
have involved property taxation.21 In Kiplinger, we implicitly
assumed that article VIII, § 4, applied to excise taxes, but we
did not decide that issue, because it was not raised. We address
it now as an issue of first impression.
[7] Constitutional provisions are not open to construction
as a matter of course; construction is appropriate only when
it has been demonstrated that the meaning of the provision is
not clear and that construction is necessary.22 It is true, as the
Knox Countians argue, that the language of article VIII, § 4,
does not expressly differentiate between various types of tax.
But its prohibition of the release or discharge of a taxpayer’s
“proportionate share of taxes” and the commutation of “such
taxes” raises a legitimate question as to its scope.23
[8,9] It is a fundamental principle of constitutional inter-
pretation that each and every clause within a constitution has
been inserted for a useful purpose.24 In ascertaining the intent
of a constitutional provision from its language, a court may not
supply any supposed omission, or add words to or take words
from the provision as framed.25 The language of article VIII,
§ 4, does not prohibit the release, discharge, or commutation of
“taxes,” but, rather, a taxpayer’s “proportionate share” of taxes.
21
See, Sarpy Cty. Farm Bureau v. Learning Community, 283 Neb. 212, 808
N.W.2d 598 (2012); Swanson v. State, 249 Neb. 466, 544 N.W.2d 333(1996); Jaksha v. State, 241 Neb. 106, 486 N.W.2d 858 (1992); Natural
Gas Pipeline Co. v. State Bd. of Equal., 237 Neb. 357, 466 N.W.2d
461 (1991); Peterson v. Hancock, 155 Neb. 801, 54 N.W.2d 85 (1952);
Steinacher v. Swanson, 131 Neb. 439, 268 N.W. 317 (1936); Woodrough v.
Douglas County, 7l Neb. 354, 98 N.W. 1092 (1904); State v. Graham, l7
Neb. 43, 22 N.W. 114 (1885).
22
State ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007).
23
Neb. Const. art. VIII, § 4.
24
City of North Platte v. Tilgner, 282 Neb. 328, 803 N.W.2d 469 (2011);
State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 347 (2006).
25
Tilgner, supra note 24.
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BANKS v. HEINEMAN 399
Cite as 286 Neb. 390That phrase, which we are not free to ignore or disregard, cor-
relates with the requirement of Neb. Const. art. VIII, § 1, that
taxes be levied by valuation uniformly and proportionally. We
have held that this constitutional provision does not apply to
an excise tax.26
When article VIII, § 4, was enacted in 1875, property taxes
provided the sole means of funding state and local govern-
ment in Nebraska. In Woodrough v. Douglas County,27 we
noted that article VIII, § 4, was taken verbatim from a pro-
vision of the Constitution of Illinois which was adopted to
address “[a]n evil [which] had grown up in that state which
had commenced to break down the principles of uniformity
and equality of taxation.” Article VIII, § 4, has been amended
twice, in 1958 and 1966, and both amendments related to
real property.28
[10,11] The Nebraska Constitution, as amended, must be
read as a whole.29 Based on the semantic and historical linkage
between the prohibition against commutation of a taxpayer’s
“proportionate share” of taxes in article VIII, § 4, and the uni-
form and proportionate requirements of article VIII, § 1, we
conclude that the scope of the two provisions is the same. We
therefore hold that the constitutional prohibition against com-
mutation of taxes set forth in article VIII, § 4, does not apply
to an excise tax. To the extent that Kiplinger can be read to
suggest otherwise, it is disapproved.
2. Special Legislation
Because we conclude that the nameplate capacity tax credit
does not constitute an unconstitutional commutation of a tax,
we must reach the issue not addressed by the district court,
which is whether the statute authorizing the credit is special
26
Galyen, supra note 16.
27
Woodrough, supra note 21, 71 Neb. at 362, 98 N.W. at 1094.
28
See, 1957 Neb. Laws, ch. 214, § 1, p. 750; 1965 Neb. Laws, ch. 299, § 1,
p. 845.
29
State ex rel. Johnson, supra note 22; Duggan v. Beermann, 245 Neb. 907,
515 N.W.2d 788 (1994).
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400 286 NEBRASKA REPORTS
legislation prohibited by the state constitution. Article III, § 18,
provides in relevant part:
The Legislature shall not pass local or special laws in
any of the following cases, that is to say:
....
Granting to any corporation, association, or individual
any special or exclusive privileges, immunity, or fran-
chise whatever . . . . In all other cases where a gen-
eral law can be made applicable, no special law shall
be enacted.
[12,13] The focus of the prohibition against special legisla-
tion is the prevention of legislation which arbitrarily benefits
or grants special favors to a specific class.30 Generally, a leg-
islative act constitutes special legislation if it either (1) creates
an arbitrary and unreasonable method of classification or (2)
creates a permanently closed class.31 A closed class is one that
limits the application of the law to a present condition, and
leaves no room or opportunity for an increase in the numbers
of the class by future growth or development.32
[15] The legislation at issue here created a closed class.
Section 77-6203(5)(b) limits the availability of the credit to
entities which paid personal property taxes on a wind energy
generation facility prior to January 1, 2010; Elkhorn Ridge was
the only entity that did so. But this does not end the analysis.
The Legislature has the power to enact special legislation where
the subject or matters sought to be remedied could not be prop-
erly remedied by a general law and where the Legislature has a
reasonable basis for the enactment of the law.33
In Gossman v. State Employees Retirement System,34 we
rejected a claim that the State Employees Retirement Act
30
Kiplinger, supra note 13; Yant, supra note 11.
31
See id.
32
Kiplinger, supra note 13.
33
Yant, supra note 11; State, ex rel. Spillman, v. Wallace, 117 Neb. 588, 221
N.W.2d 712 (1928).
34
Gossman v. State Employees Retirement System, 177 Neb. 326, 129
N.W.2d 97 (1964).
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BANKS v. HEINEMAN 401
Cite as 286 Neb. 390enacted in 1963 was unconstitutional. The act required a
monthly contribution from all employees of 1 percent of their
salary. The money was used to provide prior service benefits
for certain persons employed on the effective date of the act.
An employee alleged this was special legislation because the
contribution was earmarked for the benefit of a closed class
to which he could not belong. We noted that “any retirement
act is ‘special’ legislation in the sense that it is designed for
a particular group of people and for a special purpose” and
that “[i]ts purposes cannot be accomplished by a general law
applying to all people.”35 We further noted that the prior serv­
ice benefits were a legitimate objective of retirement legisla-
tion and concluded that, viewed in the context of the “whole
scheme and purpose of the [State Employees Retirement]
Act,”36 the classification was reasonable and did not violate
article III, § 18.
In State, ex rel. Spillman, v. Wallace,37 this court upheld the
validity of a statute which required state tuberculosis testing
of cattle in specified counties, but made such testing optional
in other counties. This court reasoned that the Legislature may
enact special legislation where it has a reasonable basis to
do so.38
More recently, in Yant v. City of Grand Island,39 this court
held that a law which provided for the relocation of the
Nebraska State Fair from Lincoln to Grand Island did not vio-
late the closed class prohibition of article III, § 18, because the
Legislature had a reasonable basis for enacting a special law
in furtherance of a legitimate public policy. We reasoned that
specification of a single site for the state fair was a legitimate
legislative function and that a general law was not feasible
because relocation of the fair necessarily involved selecting a
single location. We also noted that the law did not confer any
35
Id. at 336, 129 N.W.2d at 104.
36
Id.
37
Wallace, supra note 33.
38
Id.
39
Yant, supra note 11.
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402 286 NEBRASKA REPORTS
special benefit or privilege because the fair was intended to
benefit the entire state.
These precedents establish that we must view the nameplate
capacity tax credit in the context of the whole scheme and pur-
pose of the broader legislation. The closed class was created by
the provision of L.B. 1048 which exempted personal property
used for wind energy generation from the personal property
tax. When that exemption became effective, Elkhorn Ridge
was the only entity which had paid personal property tax on
such property, and no other entity could become a member of
the class because of the new exemption. The Legislature thus
could not enact a general law granting a credit for property tax
paid on such property, because only one taxpayer had paid such
tax and no others would. Thus, if there were to be a credit, it
could apply to only one taxpayer.
The record establishes that the Legislature had a reasonable
basis for enacting the credit provision, as it did so in order
to address what it correctly perceived as a harsh and unfair
consequence of its decision to change the law regarding taxa-
tion of property used for wind generation of electricity. The
nameplate capacity tax was clearly intended to be instead of,
not in addition to, the personal property tax on wind energy
generation equipment. But without the credit, Elkhorn Ridge
would be required to pay both personal property tax and the
nameplate capacity tax on the same equipment. Thus, the
credit does not arbitrarily benefit or grant special favors to
Elkhorn Ridge, but, rather, achieves tax equity by requiring
it to pay only the equivalent of the nameplate capacity tax, in
the same manner as all other commercial operators of wind
generation facilities.
This court has recognized that the Legislature may legiti-
mately make provision for those adversely affected by a
change in the law, although not in the context of a special
legislation analysis. We have held that the Legislature may
reduce the limitation period for bringing a particular cause of
action, but when it does so, it cannot make the new limitation
period applicable to existing claims without allowing a rea-
sonable time for parties to bring an action before such claims
Nebraska Advance Sheets
BANKS v. HEINEMAN 403
Cite as 286 Neb. 390are absolutely barred by a new enactment.40 We examined one
such provision in Macku v. Drackett Products Co.,41 which
involved a legislative change in the limitation period appli-
cable to product liability actions. The new law provided that,
notwithstanding the new limitation period, any person who
had a claim on the date of enactment of the new law had 2
years from that date to commence an action.42 We concluded in
Macku that this provision complied with the Legislature’s obli-
gation to provide a reasonable time for persons to file actions
which would otherwise be barred by a new law shortening a
limitation period.
The class of existing claims as of the date of enactment
of a shortened limitation period is necessarily closed, but the
Legislature may nonetheless make special provision for such
claims in the new law. This does not arbitrarily benefit or grant
special favors to the class, but, rather, prevents its members
from being treated unjustly by a change in the law. And, just as
the Legislature may make provision for a finite class of exist-
ing claims when it enacts a new law shortening a limitations
period, it has a reasonable basis in furtherance of a legitimate
public policy to grant a credit for personal property tax paid
prior to the enactment of the new nameplate capacity tax. We
do not read Nebraska’s constitutional prohibition against spe-
cial legislation to proscribe the Legislature from enacting a
reasonable provision to prevent an unjust result from a change
in the law.
V. CONCLUSION
For the reasons discussed, we independently conclude
that the nameplate capacity tax credit currently codified at
40
See, Schendt v. Dewey, 246 Neb. 573, 520 N.W.2d 541 (1994); Macku v.
Drackett Products Co., 216 Neb. 176, 343 N.W.2d 58 (1984); Educational
Service Unit No. 3 v. Mammel, O., S., H. & S., Inc., 192 Neb. 431, 222
N.W.2d 125 (1974), disapproved on other grounds, Jorgensen v. State Nat.
Bank & Trust, 255 Neb. 241, 583 N.W.2d 331 (1998).
41
Macku, supra note 40.
42
See Neb. Rev. Stat. § 25-224(4) (Reissue 2008).
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404 286 NEBRASKA REPORTS
§ 77-6203(5)(b) does not violate either article VIII, § 4,
or article III, § 18. Accordingly, we reverse the judgment
of the district court and remand the cause with directions
to dismiss.
R eversed and remanded with directions.
McCormack, J., participating on briefs.
Wright, J., not participating.
State of Nebraska, appellee and
cross-appellant, v. John Blake
Edwards, appellant and
cross-appellee.
___ N.W.2d ___
Filed August 2, 2013. No. S-12-777.
1. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
2. Prosecuting Attorneys: Appeal and Error. A motion for the appointment of a
special prosecutor is addressed to the discretion of the trial court, and absent an
abuse of discretion, a ruling on such a motion will not be disturbed on appeal.
3. Appeal and Error. Plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.
4. Jury Instructions. Jury instructions are not prejudicial if they, when taken as a
whole, correctly state the law, are not misleading, and adequately cover the issues
supported by the pleadings and the evidence.
5. Criminal Law: Proof. The State carries the burden to prove all elements of the
crime charged.
6. Jury Instructions. An instruction which withdraws from the jury an essential
element in the case is prejudicial.
7. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court would have been sufficient to sustain a guilty verdict.
8. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
9. Criminal Law: Entrapment: Estoppel. The elements of the defense of entrap-
ment by estoppel are (1) that the defendant must have acted in good faith before