State ex rel. Peterson v. Shively

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www.nebraska.gov/apps-courts-epub/
10/08/2021 01:08 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1State of Nebraska ex rel. Douglas J. Peterson,
Attorney General of the State of Nebraska,
appellant, v. David J. Shively, in his official
capacity as Lancaster County Election
Commissioner, et al., appellees, and Pete
Ricketts, in his official capacity as
Governor of the State of Nebraska,
and Robert B. Evnen, in his official
capacity as Secretary of State
of the State of Nebraska,
intervenors-appellees.
___ N.W.2d ___
Filed August 20, 2021. No. S-21-066.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Constitutional Law: Statutes: Appeal and Error. The constitutional-
ity of a statute is a question of law, and the Nebraska Supreme Court is
obligated to reach a conclusion independent of the decision reached by
the trial court.
4. Constitutional Law: Appeal and Error. Constitutional interpretation is
a question of law on which the Nebraska Supreme Court is obligated to
reach a conclusion independent of the decision by the trial court.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 15. Judgments: Appeal and Error. An appellate court may affirm a lower
court’s ruling that reaches the correct result, albeit based on differ-
ent reasoning.
6. Constitutional Law: Statutes: Presumptions. A statute is presumed
to be constitutional, and all reasonable doubts are resolved in favor of
its constitutionality.
7. Constitutional Law: Statutes: Proof. The party challenging the consti-
tutionality of a statute bears the burden to clearly establish the unconsti-
tutionality of a statutory provision.
8. Constitutional Law: Statutes. It is not the province of a court to annul
a legislative act unless it clearly contravenes the constitution and no
other resort remains.
9. Judgments. Although an Attorney General’s opinion is entitled to sub-
stantial weight and is to be respectfully considered, it nonetheless has no
controlling authority on the state of the law discussed in it and, standing
alone, is not to be regarded as legal precedent or authority of such char-
acter as is a judicial decision.
10. Constitutional Law: Intent. The words in a constitutional provision
must be interpreted and understood in their most natural and obvious
meaning unless the subject indicates or the text suggests that they are
used in a technical sense.
11. ____: ____. If the meaning of a constitutional provision is clear, the
court will give to it the meaning that obviously would be accepted and
understood by laypersons.
12. Constitutional Law: Statutes. Constitutional provisions are not subject
to strict construction and receive a broader and more liberal construction
than do statutes.
13. Constitutional Law: Courts: Intent. It is the duty of courts to ascer-
tain and to carry into effect the intent and purpose of the framers of the
constitution or of an amendment thereto.
14. Constitutional Law: Legislature: Initiative and Referendum. The
Nebraska Constitution vests complete legislative authority of the state
in the Legislature, subject only to the rights of initiative and referendum
reserved by the constitution to the people and to any specific restrictions
on the legislative authority found in the constitution itself.
15. Constitutional Law: Legislature. The Nebraska Constitution is not a
grant, but, rather, a restriction on legislative power, and the Legislature
may legislate on any subject not inhibited by the constitution.
16. Constitutional Law: Courts. Courts can enforce only those limitations
which the Nebraska Constitution imposes.
17. Statutes: Words and Phrases. The word “necessary,” especially
when used in a statute, may mean anything from “indispensable” to
“convenient.”
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 118. Legislature: Public Officers and Employees. The number and char-
acter of county offices that may be created rests in the discretion of
the Legislature.
19. ____: ____. The Legislature enjoys broad discretion in creating and
defining county offices, and deciding who is a county officer is a matter
generally within the Legislature’s authority.
20. ____: ____. The Legislature possesses the discretionary authority to
create and define county offices, a power which includes the ability to
define or identify who is a county officer.
21. Statutes. Statutory interpretation begins with the text, and the text is to
be given its plain and ordinary meaning.
22. Statutes: Appeal and Error. An appellate court will not resort to inter-
pretation of statutory language to ascertain the meaning of words which
are plain, direct, and unambiguous.
23. Statutes: Intent. When interpretation of a statute is necessary, a court
will look to the statutory objective to be accomplished, the evils and
mischiefs sought to be remedied, and the purpose to be served.
24. ____: ____. A court must reasonably or liberally construe a statute to
achieve the statute’s purpose, rather than construing it in a manner that
defeats the statutory purpose.
25. Constitutional Law: Statutes: Legislature. Legislative construction of
a statutory or constitutional provision, although not conclusive on the
courts, when deliberately made is entitled to great weight.
26. Statutes: Legislature: Intent. The intent of the Legislature may be
found through its omission of words from a statute.
27. Legislature: Public Officers and Employees: Intent. The Legislature
did not intend for election commissioners or chief deputies to be classi-
fied as county officers.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Douglas J. Peterson, Attorney General, James A. Campbell,
Solicitor General, L. Jay Bartel, and Lynn A. Melson, for
appellant.
Marnie A. Jensen and David A. Lopez, of Husch Blackwell,
L.L.P., for appellees and intervenors-appellees.
Beth Bazyn Ferrell for amicus curiae Nebraska Association
of County Officials.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1Andre R. Barry and John F. Zimmer, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for amicus curiae Civic
Nebraska.
Joshua R. Woolf, Deputy Douglas County Attorney, Eric W.
Synowicki, Deputy Lancaster County Attorney, and Andrea
V. Gosnold-Parker, Deputy Sarpy County Attorney, for amici
­curiae Douglas, Lancaster, and Sarpy Counties.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Freudenberg, JJ., and Arterburn, Judge.
Funke, J.
The Attorney General of the State of Nebraska appeals the
determination of the district court for Lancaster County that
Nebraska statutes authorizing the Governor to appoint elec-
tion commissioners in Lancaster, Douglas, and Sarpy Counties
are constitutional. The Attorney General argues that election
commissioners and their chief deputies are county officers
and that article IX, § 4, of the Nebraska Constitution requires
county officers to be elected. In affirming the decision of the
district court, we conclude that article IX, § 4, respects the
Legislature’s broad discretion and legislative authority to cre-
ate and define county offices and officers.
BACKGROUND
Honest Election Law of 1913
The Nebraska Legislature created the office of the elec-
tion commissioner in the Honest Election Law of 1913, now
known as the Election Act. 1 Under the Honest Election Law
of 1913, the primary job of the election commissioner was to
enforce Nebraska’s election laws. 2 The Honest Election Law of
1
See Neb. Rev. Stat. §§ 32-101 to 32-1551 (Reissue 2016 & Cum. Supp.
2020).
2
Neb. Rev. Stat. §§ 2314 and 2315 (1914).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 11913 empowered the Governor to appoint the election commis-
sioner in certain counties, based on population, and empow-
ered the appointed election commissioner to appoint a chief
deputy election commissioner of the opposing political party. 3
Today, the Election Act requires that the Governor appoint an
election commissioner for counties with a population of over
100,000 inhabitants. 4 As a result, in Lancaster, Douglas, and
Sarpy Counties, the Legislature has provided that election com-
missioners are to be appointed.
Attorney General’s Opinion
On September 24, 2019, at the request of a Nebraska state
senator, the Attorney General issued an opinion answering
two questions: (1) whether election commissioners are county
officers within the meaning of article IX, § 4, of the Nebraska
Constitution and (2) if election commissioners are county
officers, whether the appointment of election commissioners
and the chief deputies violates that provision of the Nebraska
Constitution.
In answering the first question, the Attorney General quoted
language from State, ex rel. O’Connor, v. Tusa, 5 where we
stated that “[i]t may be said that the almost universal rule
is that, in order to indicate office, the duties must partake
in some degree of the sovereign powers of the state.” The
Attorney General noted that in discussing a public office, we
stated in Tusa that “‘[a]n office is a public station or employ-
ment, conferred by the appointment of government . . . .’” 6
We further stated that it “‘embraces the ideas of tenure, dura-
tion, emolument, and duties.’” 7 The Attorney General found
3
See § 32-209.
4
§ 32-207.
5
State, ex rel. O’Connor, v. Tusa, 130 Neb. 528, 535, 265 N.W. 524, 528
(1936).
6
Id.
7
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1that election commissioners and chief deputies are county
officers, emphasizing that their authority derives from statute,
they are appointed for a fixed term, they are required to take
an oath and furnish a bond before taking office, and they are
responsible for the enforcement of the Election Act as it relates
to his or her office. The Attorney General explained that its
findings were consistent with this court’s opinion in State, ex
rel. Meissner, v. McHugh, 8 where we identified the respondents
in the case, the Douglas County election commissioner and his
chief deputy, as public officers.
Regarding the second question, the Attorney General found
that the appointment statutes were unconstitutional pursuant
to Tusa. In Tusa, this court held that a county manager was
a county officer as the term is used in article IX, § 4, and
that as a result, the Nebraska statute authorizing the appoint-
ment of a county manager was unconstitutional. The Attorney
General also relied upon our decision in State, ex rel. Harte,
v. Moorhead, 9 where this court noted that “[t]he Constitution
makers had something definite in mind when they provided
that county officers should be elected.”
Based on these authorities, and its conclusion that elec-
tion commissioners and chief deputies are county officers, the
Attorney General opined that Nebraska’s statutes requiring or
authorizing the appointment of an election commissioner or
chief deputy are constitutionally suspect and would be found
unconstitutional by a court.
Court Proceedings
On September 30, 2019, Pete Ricketts, Governor of the
State of Nebraska, responded to the Attorney General’s opin-
ion in a letter stating that he would refuse to exercise his
statutory appointment authority, and therefore would decline to
8
State, ex rel. Meissner, v. McHugh, 120 Neb. 356, 233 N.W. 1 (1930).
9
State, ex rel. Harte, v. Moorhead, 99 Neb. 527, 534, 156 N.W. 1067, 1069
(1916).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1appoint a Douglas County election commissioner, necessitat-
ing litigation under Neb. Rev. Stat. § 84-215 (Reissue 2014).
Section 84-215 provides that when the Attorney General opines
that an act of the Legislature is unconstitutional, and a state
officer charged with the duty of implementing the act refuses
to implement the act in reliance on that opinion, the Attorney
General must file an action to determine the validity of the act.
Pursuant to § 84-215, the Attorney General sought leave to
file an original action in the Nebraska Supreme Court against
the Secretary of State of the State of Nebraska. Leave to com-
mence an original action was denied after the parties were
unable to reach a complete stipulation of the facts.
Thereafter, the Attorney General filed a lawsuit in district
court against the election commissioners and the chief depu-
ties of Lancaster, Douglas, and Sarpy Counties (collectively
Respondents). Governor Ricketts and Secretary of State Robert
B. Evnen (collectively Intervenors), in their official capacities,
intervened on the side of Respondents. In a motion for sum-
mary judgment, the Attorney General asked the court to declare
unconstitutional, in violation of article IX, § 4, §§ 32-207
and 32-209, and any related provisions of the Election Act.
The Attorney General also requested the court to declare any
statutory appointments void. In response, Respondents and
Intervenors moved for summary judgment, asserting that elec-
tion commissioners and their chief deputies are not county offi-
cers and that article IX, § 4, does not deprive the Legislature
of its authority to provide for the appointment of election com-
missioners in counties with a certain population.
The court entered judgment in favor of Respondents and
Intervenors. The court concluded that election commissioners
are not “county officers” under article IX, § 4. The court cited
Tusa and acknowledged that in order to be an article IX, § 4,
“officer,” the duties of the post must “partake in some degree
of the sovereign powers of the state.” 10 The court was not
10
Tusa, supra note 5, 130 Neb. at 535, 265 N.W. at 528.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1persuaded by the Attorney General’s argument that “officers”
under article IX, § 4, should generally take an oath or give a
bond. The court explained that under this interpretation, the
Legislature could avoid the election requirement by amending
the statutes to no longer require an oath or a bond for a county
job. The court further explained that an oath does not distin-
guish county officers from mere county employees, because in
Nebraska, all public employees are required by statute to swear
an oath. Additionally, the court noted that any person who is
entrusted with county funds is required to give a bond or an
equivalent insurance policy.
The court found that the Attorney General’s position swept
too broadly and that courts must look to an “interpretation of
the constitution [that] will carry out the framers’ intent and
purpose.” The court determined that election commissioners
have been appointed by the Governor in Nebraska for more
than 100 years and that, if anything, election commissioners
exercised even broader powers when the office was created a
century ago. Thus, the court concluded that the statutes allow-
ing the Governor to appoint election commissioners in the
State’s most populous counties do not violate the Nebraska
Constitution. Instead, the court explained, the appointment stat-
utes reflect a settled understanding of the Nebraska Constitution
for over a century.
After judgment was entered, upon an unopposed motion, the
court amended the judgment, clarifying that all claims were
resolved. Additionally, the court entered a nunc pro tunc order
clarifying its evidentiary rulings and stating that exhibits 1
through 3 and 7 through 18 were received into evidence during
the proceedings. The Attorney General appeals.
Three amicus briefs were filed in this appeal. The Nebraska
Association of County Officials filed an amicus brief in sup-
port of Respondents. Lancaster, Douglas, and Sarpy Counties
also filed a joint amicus brief in support of Respondents.
Additionally, Civic Nebraska filed an amicus brief in support
of the Attorney General.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1ASSIGNMENTS OF ERROR
The Attorney General assigns, summarized and restated, that
the district court erred in (1) concluding that the election com-
missioners are not county officers under article IX, § 4, and (2)
failing to declare Nebraska’s appointment statutes unconstitu-
tional and void any appointments made under those statutes.
STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. 11 In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted, and gives that
party the benefit of all reasonable inferences deducible from
the evidence. 12
[3,4] The constitutionality of a statute is a question of law,
and this court is obligated to reach a conclusion independent
of the decision reached by the trial court. 13 Constitutional
interpretation is a question of law on which this court is obli-
gated to reach a conclusion independent of the decision by the
trial court. 14
[5] An appellate court may affirm a lower court’s ruling that
reaches the correct result, albeit based on different reasoning. 15
ANALYSIS
[6-8] We begin by noting that a statute is presumed to
be constitutional, and all reasonable doubts are resolved in
11
Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d 186 (2019).
12
Id.
13Pony Lake Sch. Dist. v. State Committee for Reorg., 271 Neb. 173, 710
N.W.2d 609 (2006).
14
Hall v. Progress Pig, Inc., 259 Neb. 407, 610 N.W.2d 420 (2000).
15
Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
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Nebraska Supreme Court Advance Sheets
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STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1favor of its constitutionality. 16 The party challenging the con-
stitutionality of a statute bears the burden to clearly establish
the unconstitutionality of a statutory provision. 17 It is not the
province of a court to annul a legislative act unless it clearly
contravenes the constitution and no other resort remains. 18
[9] In the present matter, the district court granted
Respondents’ motion for summary judgment and determined
that election commissioners are not “county officers” under
article IX, § 4. The Attorney General disagrees and argues
election commissioners and chief deputies fall under the defi-
nition of the word “officer” and serve a county, thus making
them “county officers.” The Attorney General further contends
that because article IX, § 4, requires county officers to be
elected, the statutes authorizing the appointment of election
commissioners and chief deputy election commissioners are
unconstitutional. Although an Attorney General’s opinion is
entitled to substantial weight and is to be respectfully consid-
ered, it nonetheless has no controlling authority on the state
of the law discussed in it and, standing alone, is not to be
regarded as legal precedent or authority of such character as is
a judicial decision. 19
[10-13] The words in a constitutional provision must be
interpreted and understood in their most natural and obvi-
ous meaning unless the subject indicates or the text suggests
that they are used in a technical sense. 20 If the meaning of a
constitutional provision is clear, the court will give to it the
meaning that obviously would be accepted and understood
by lay­persons. 21 Constitutional provisions are not subject to
strict construction and receive a broader and more liberal
16
State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).
17
Pony Lake Sch. Dist., supra note 13.
18
Id.
19State v. Coffman, 213 Neb. 560, 330 N.W.2d 727 (1983).
20
State ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007).
21
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1construction than do statutes. 22 It is the duty of courts to ascer-
tain and to carry into effect the intent and purpose of the fram-
ers of the constitution or of an amendment thereto. 23
Upon this court’s review of the record, we conclude that
under the plain text of article IX, § 4, the Legislature has
broad discretion and authority in creating and defining county
offices and officers. While this discretion is not wholly unfet-
tered, the statutes challenged here lie well within constitu-
tional bounds.
Legislative Authority
[14-16] Article III, § 1, of the Nebraska Constitution vests
complete legislative authority of the state in the Legislature,
subject only to the rights of initiative and referendum reserved
by the constitution to the people and to any specific restric-
tions on the legislative authority found in the constitution
itself. In other words, the Legislature has plenary legislative
authority limited only by the state and federal Constitutions. 24
The Nebraska Constitution is not a grant, but, rather, a restric-
tion on legislative power, and the Legislature may legislate on
any subject not inhibited by the constitution. 25 Consequently,
courts can enforce only those limitations which the Nebraska
Constitution imposes. 26
[17] Article IX, § 4, states, in pertinent part, “The Legislature
shall provide by law for the election of such county and town-
ship officers as may be necessary . . . .” Although we have not
had the opportunity to define the meaning of § 4’s phrase “as
may be necessary,” we have explained that the word “neces-
sary,” especially when used in a statute, may mean anything
22
Id.
23
Id.
24
Dwyer v. Omaha-Douglas Public Building Commission, 188 Neb. 30, 195
N.W.2d 236 (1972), citing Swanson v. State, 132 Neb. 82, 271 N.W. 264(1937).
25
Lenstrom v. Thone, 209 Neb. 783, 311 N.W.2d 884 (1981).
26
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310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1from “indispensable” to “convenient.” 27 The U.S. Supreme
Court, in Maggio v. Zeitz, 28 used the phrase “‘as may be nec-
essary’” and the phrase “wide discretion[]” when discussing
enforcement under the federal Bankruptcy Act; in doing so, the
Court explained that a bankruptcy court is given a “wide dis-
cretionary jurisdiction to accomplish the ends of the Act,” or,
in the words of the statutes, to “‘make such orders, issue such
process, and enter such judgments . . . as may be necessary for
the enforcement of the provisions of this title.’” This nexus
between the phrase “as may be necessary” and discretionary
authority is confirmed by similar language in our precedent of
Dinsmore v. State. 29
[18,19] In Dinsmore, the defendant was convicted of first
degree murder and claimed that there was no warrant in the
Nebraska Constitution for electing county attorneys, so that,
therefore, his conviction, which was secured by a county
attorney, was void. 30 This court disagreed and acknowledged
that the office of the county attorney was created by legisla-
tive enactment, not by the constitution. 31 We also explained
that the power of the Legislature to create a county attor-
ney office cannot be doubted in light of Neb. Const. art. X,
§ 4, the predecessor to Neb. Const. art. IX, § 4. 32 We further
emphasized that the “number and character of county offices
that may be created rests in the discretion of the lawmaking
body.” 33 Thus, under the plain text of article IX, § 4, and our
historic precedent of Dinsmore, the Legislature enjoys broad
27
In re Application A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990), citing
Banks v. Board of Education of Chase County, 202 Neb. 717, 277 N.W.2d
76 (1979).
28
Maggio v. Zeitz, 333 U.S. 56, 62, 68 S. Ct. 401, 92 L. Ed. 476 (1948).
29
Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).
30
Id.
31Id.
32Id.
33Id. at 429, 85 N.W. at 448.
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310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1discretion in creating and defining county offices, and decid-
ing who is a county officer is a matter generally within the
Legislature’s authority.
[20] The 1866 Nebraska Constitution vested the state’s leg-
islative authority in the Legislature without any reservation to
the people of either initiative or referendum, but made no refer-
ence to counties. 34 However, counties were seemingly already
in existence prior to the 1866 constitution, pursuant to territo-
rial law. 35 Then, in 1873, the Legislature exercised its legisla-
tive authority by confirming the boundaries of these existing
counties and by creating others. 36 It also created legislation to
provide for the government of these counties and defined the
powers and duties of those counties and their respective offi-
cers. 37 Further, since 1866, the Legislature has, at will, added to
the powers and duties of counties and occasionally taken away
certain powers. 38 Moreover, the Legislature has previously
exercised its power and authority to create subdivisions of
government to perform special governmental functions on sev-
eral occasions, such as sanitary districts, 39 rural fire protection
districts, 40 airport authorities, and housing authorities. 41 Thus, it
is clear that the power and authority to create counties and pro-
vide for county governance rests with the Legislature, which it
has exercised long before the 1875 Nebraska Constitution was
ratified. The case before us does not require that we articulate
the outer boundaries of that discretion. Therefore, pursuant
34
Dwyer, supra note 24.
35
Id.
36
Id.
37
Id.
38
Id.
39
See Whedon v. Wells, 95 Neb. 517, 145 N.W. 1007 (1914).
40
See Seward County Rural Fire Protection Dist. v. County of Seward, 156
Neb. 516, 56 N.W.2d 700 (1953).
41
Dwyer, supra note 24.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1to the plain text of article IX, § 4, our holding in Dinsmore,
and the history of legislative authority in the state, we hold that
the Legislature possesses the discretionary authority to create
and define county offices, a power which includes the ability
to define or identify who is a county officer.
Election Commissioner and Chief
Deputy Not County Officers
Following our conclusion that the Legislature wields the
power and authority to create and define county offices and
officers, we now turn to the merits of the case and discuss
whether the Legislature has defined election commissioners
and chief deputy election commissioners as county officers.
The Attorney General argues election commissioners and chief
deputy election commissioners are county officers because they
are public officers who serve a specific county. In support of its
argument, the Attorney General synthesizes case law from other
jurisdictions and enunciates a list of indicia which, it argues,
identifies who is a county officer. We disagree and decline to
adopt the Attorney General’s reasoning. Upon a review of the
law and the record, it is apparent that the Legislature did not
intend for election commissioners and deputy chief election
commissioners to be recognized as county officers.
[21-24] Statutory interpretation begins with the text, and
the text is to be given its plain and ordinary meaning. 42 An
appellate court will not resort to interpretation to ascertain
the meaning of words which are plain, direct, and unambig­
uous. 43 However, when interpretation is necessary, a court will
look to the statutory objective to be accomplished, the evils
and mischiefs sought to be remedied, and the purpose to be
served. 44 The court must then reasonably or liberally construe
42
See, Heiden v. Norris, 300 Neb. 171, 912 N.W.2d 758 (2018); Kozal v.
Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 (2017).
43
See Heiden, supra note 42.
44
Id.- 15 -
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310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1the statute to achieve the statute’s purpose, rather than constru-
ing it in a manner that defeats the statutory purpose. 45
[25] In Dwyer v. Omaha-Douglas Public Building Com­mis­
sion, 46 this court heard a constitutional challenge to a statute
authorizing certain cities and counties to establish a public
building commission. In Dwyer, we emphasized that “[l]egis-
lative construction of a statutory or constitutional provision,
although not conclusive on the courts, when deliberately made
is entitled to great weight.” 47
[26,27] Neb. Rev. Stat. §§ 23-1114.01 to 23-1114.07 (Reissue
2012) amount to what can be described as the Legislature’s list
of county officers. These sections list various county officers
and their salaries, classified by county population size. These
statutes classify positions such as the county clerk, treasurer,
sheriff, attorney, appointive full-time veterans service officer,
and clerk of the district court as county officers. However,
these statutes make no mention of or reference to an election
commissioner and a chief deputy election commissioner. Thus,
because the intent of the Legislature may be found through its
omission of words from a statute, 48 we find that through its
omission of election commissioners and chief deputy election
commissioners from the language contained in §§ 23-1114.01
to 23-1114.07, the Legislature did not intend for election com-
missioners or the chief deputies to be classified as county
officers. 49 In fact, in § 32-217, the Legislature specifically
identifies the election commissioner, the chief deputy election
commissioner, and all employees of the office of the election
commissioner as county employees. We view the statutory
45
Id.
46
Dwyer, supra note 24.
47
Id. at 36, 195 N.W.2d at 241, citing State ex rel. Johnson v. Chase, 147
Neb. 758, 25 N.W.2d 1 (1946).
48
See Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723(2016).
49
See id.- 16 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1scheme adopted by the Legislature as compelling evidence that
if the Legislature had intended for election commissioners and
the chief deputies to be county officers, the Legislature would
have identified them as county officers.
Further, it is clear that the Legislature did not intend to make
election commissioners county officers, as shown by the fact
that the Legislature created separate and distinct processes for
removing county officers and election commissioners. Neb.
Rev. Stat. § 23-2001 (Reissue 2012) provides that all county
officers may be removed from office for (1) habitual or will-
ful neglect of duty, (2) extortion, (3) corruption, (4) willful
maladministration in office, (5) conviction of a felony, (6)
habitual drunkenness, or (7) official misconduct as defined
in Neb. Rev. Stat. § 28-924 (Reissue 2016). Further, Neb.
Rev. Stat. §§ 23-2001 to 23-2013 (Reissue 2012) provide that
county officers are removed by judicial proceedings. On the
other hand, § 32-214 provides that an election commissioner or
a chief deputy shall be removed when (1) he or she has been
derelict in the performance of the duties of the office; (2) he
or she is incompetent; (3) his or her conduct is prejudicial to
the public interest; (4) he or she has appointed incompetent,
negligent, or corrupt precinct or district inspectors, judges of
election, clerks of election, or deputy registrars; (5) a fair and
impartial registration of voters was not obtained in any district
of the county; or (6) the act was not enforced in the county.
Further, § 32-214 provides that the Governor has the authority
to remove the election commissioner or the chief deputy when
either is subject to removal under the statute. If the Governor
fails to do so, any citizen of the county may institute an action
to order the Governor to remove the election commissioner or
the chief deputy.
From the plain text of the Nebraska Revised Statutes, it is
clear that the Legislature did not intend election commission-
ers and chief deputies to be considered county officers. The
Legislature has the sovereign authority and prerogative to cre-
ate and define county offices. As such, in light of article IX,
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE EX REL. PETERSON v. SHIVELY
Cite as 310 Neb. 1§ 4, we find that §§ 32-207 and 32-209 are constitutional.
Accordingly, we conclude that the Attorney General’s assign-
ments of error are without merit.
CONCLUSION
The restrictions imposed upon the Legislature by Neb. Const.
art. IX, § 4, recognized a broad discretion to determine the
necessity of choosing county and township officers by election.
Here, the Legislature has determined that election commis-
sioners and chief deputies are not county officers. Because its
determination does not fall outside of that broad discretion, the
judgment of the district court must be affirmed. The framers
intended for the Legislature to hold this power. The Legislature
has made it clear through its exercise of legislative author-
ity, per the plain and unambiguous language of the Nebraska
Revised Statutes, that it did not intend for election commis-
sioners and chief deputies to be considered county officers. The
Attorney General’s arguments are without merit.
Affirmed.
Papik, J., not participating.