State Ex Rel. Labedz v. Beermann ( 1988 )

White, J.,

dissenting.

“The first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted by the people independently of the Legislature.” Neb. Const, art. Ill, § 2.

“The provisions with respect to the initiative and referendum shall be self-executing, but legislation may be enacted to facilitate their operation.” Neb. Const, art. Ill, § 4.

As the majority concludes, the right of initiative once reserved in a state constitution assumes the status of a right protected by the first amendment to the Constitution of the United States.

As to the state constitutional question, does the 10-day restriction “facilitate” the operation of the initiative process? Only, I suggest, if necessary, and if one can discount the absence of any requirement of notice of the critical decision of the Secretary of State not to allow the filing of the initiative petitions and thus to deny the “electors of the state” the opportunity to vote on the issue presented. Neb. Const, art. Ill, §2.

The majority suggests in circular fashion that since mandamus is the prescribed remedy to raise the propriety of the refusal to place the initiative petition on the ballot, Neb. Rev. Stat. § 32-706 (Reissue 1984), and since mandamus generally lies only to compel ministerial acts, the actions of the Secretary of State must therefore be ministerial, and thus being ministerial, no notice is constitutionally required. The simple fact is that the Legislature prescribed mandamus as the remedy, and this directive is not determinative of whether the action is ministerial or not, is simply irrelevant, and, in any event, is probably wrong.

To describe the action of the Secretary of State as ministerial and as mere counting of signatures ignores completely the actions of his surrogates, the 93 election commissioners. “The county clerk or election commissioner shall. . . compare each signature of the electors signing and the circulator ... to determine if the signers and circulator were . . . duly qualified, registered voters.” Neb. Rev. Stat. § 32-704 (Reissue 1984). The multiple judgments made by the commissioners as to similarity of signed names as against registered names and variances in addresses are obvious. The findings of the commissioners constitute the findings of the Secretary of State. The actions are at least quasi-judicial in nature. In my judgment, the failure to provide for notice of quasi-judicial acts, together with the extremely short limitation period, may impede the initiative process and is therefore unconstitutional as violative of Neb. Const, art. Ill, § 2.

I agree that the mere passage of a general election date while the validity of the initiative petitions is being challenged does not void the petitions but merely postpones their consideration to the next general election date after the petitions have been determined valid. In view of this holding, what rational basis exists for the 10-day limitation to challenge the Secretary of State’s refusal to file the petition? The answer is none.

Whether an artificially and unnecessarily short limitation period, coupled with a complete lack of a requirement of notice of such action, would pass the strict scrutiny standard required in first amendment cases under the U.S. Constitution is extremely doubtful. In my judgment it does not, and I therefore dissent.

Rist, D. J., joins in this dissent.