State ex rel. Brooks v. Evnen

1

317 Neb. 581

STATE OF NEBRASKA EX REL. CATHERINE BROOKS, D.O., RELATOR, v. ROBERT B. EVNEN, SECRETARY OF STATE OF THE STATE OF NEBRASKA, RESPONDENT, AND DR. ANDY ROBERTSON ET AL., INTERVENORS.

STATE OF NEBRASKA EX REL. CAROLYN I. LAGRECA, RELATOR, v. ROBERT B. EVNEN, SECRETARY OF STATE OF THE STATE OF NEBRASKA, RESPONDENT, AND DR. ANDY ROBERTSON ET AL., INTERVENORS.

Nos. S-24-647, S-24-654

Supreme Court of Nebraska

September 13, 2024

1. Mandamus: Words and Phrases. Mandamus is a law action and represents an extraordinary remedy, not a writ of right.

2. Mandamus. Whether to grant a writ of mandamus is within a court's discretion.

3. Mandamus: Proof. Mandamus relief is available if the movant can show (1) a clear right to the relief sought, (2) a corresponding clear duty to perform the act requested, and (3) that no other plain and adequate remedy is available in the ordinary course of the law.

4.___ ___. In a mandamus action, the burden lies on the party seeking mandamus to show clearly and conclusively that the party is entitled to the particular thing the relator asks as respondent is legally obligated to act.

5. Initiative and Referendum: Justiciable Issues. A preelection challenge based on the procedural requirements to a voter ballot initiative's placement on the ballot is ripe for resolution.

6. Initiative and Referendum. Sufficiency of a ballot, including the single subject requirement, is a procedural requirement suitable for preelection determination.

7. Declaratory Judgments. An action for declaratory judgment is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.

8.____ . The purpose of a declaratory judgment action is to declare rights, status, and other legal relations.

9. Declaratory Judgments: Equity. Declaratory and equitable relief are not appropriate where another equally serviceable remedy has been provided by law, and such relief is available only in the absence of a full, adequate and serviceable remedy.

10. Declaratory Judgments. The appropriateness of a declaratory judgment is ascertained by the precise relief sought.

11. Constitutional Law: Initiative and Referendum. The right of initiative is precious to the people and one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.

12.___:___ . The power of initiative must be liberally construed to pro mote the democratic process, and provisions authorizing the initiative should be construed in such a manner that the legislative power reserved in the people is effectual.

13. Constitutional Law. A constitution represents the supreme written will of the people regarding the framework for their government.

14. Constitutional Law: Initiative and Referendum. The people of Nebraska may amend their Constitution in any way they see fit, provided the amendments do not violate the federal Constitution or conflict with federal statutes or treaties.

15. Initiative and Referendum: Appeal and Error. The Nebraska Supreme Court makes no attempt to judge the wisdom or the desirability of enacting initiative amendments.

16. Constitutional Law: Initiative and Referendum. A purpose of the language in Neb. Const art. III, § 2, that "[i]nitiative measures shall contain only one subject" is to avoid logrolling, which is the practice of combining dissimilar propositions into one proposed amendment so that voters must vote for or against the whole package even though they would have voted differently had the propositions been submitted separately.

17. Initiative and Referendum. Where 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.

18. Constitutional Law: Initiative and Referendum: Intent. The controlling consideration in determining the singleness of a subject for purposes of article III, § 2, of the Nebraska Constitution is its singleness of purpose and relationship of the details to the general subject, not the strict necessity of any given detail to carry out the general subject. The general subject is defined by its primary purpose.

Original actions. In No. S-24-647, writ of mandamus denied. In No. S-24-654, writ of mandamus denied.

Brenna M. Grasz and Adam W. Kauffman, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., for relator Catherine Brooks.

Matthew F. Heffron, Michael G. McHale, and Mary Catherine Martin, of Thomas More Society, for relator Carolyn I. LaGreca.

Michael T. Hilgers, Attorney General, Eric J. Hamilton, and Zachary B. Pohlman, for respondent.

Sydney L. Hayes, Kaitlin A. Madsen, and Daniel J. Gutman, of Law Office of Daniel Gutman, L.L.C., and Paul W. Rodney, of Arnold &Porter Kaye Scholer, L.L.P., pro hac vice, for intervenors.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

In these two consolidated original actions, relators challenge a ballot initiative that proposes to amend the Nebraska Constitution to include a right to abortion. Case No. S-24-647 is sometimes referred to as "Brooks," and case No. S-24-654 is sometimes referred to as "LaGreca." A separate case, State ex rel. Constance v. Evnen, post p. 600,____ N.W.3d ____(2024), is not addressed in this opinion. The relators herein contend, inter alia, that the ballot initiative violates the single subject rule of Neb. Const. art. III, § 2, and the relators seek, inter alia, a writ of mandamus ordering the Nebraska Secretary of State to withhold the initiative from the ballot. We determine that the ballot initiative does not violate the single subject rule, and we deny the writs, thereby denying the relief requested by the relators in both actions. By virtue of our disposition denying the writs, the alternative writs of mandamus entered in the two actions are dissolved by operation of law.

STATEMENT OF FACTS

The Challenged Initiative.

The relators in these actions challenge the ballot initiative entitled "Protect the Right to Abortion" (the Initiative) that would add a new article I, § 31, to the Nebraska Constitution. The object language shown on the Initiative petition states:

The object of this petition is to:

Amend the Nebraska Constitution to provide all persons the fundamental right to abortion without interference from the state or its political subdivisions until fetal viability which is the point in pregnancy when, in the professional judgment of the patient's health care practitioner, there is a significant likelihood of the fetus' sustained survival outside the uterus without the application of extraordinary medical measures; or when needed to protect the life or health of the pregnant patient.

The text of the proposed constitutional amendment is as follows:

Article I of the Nebraska Constitution shall be amended by adding a new section 31 as shown:

All persons shall have a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions. Fetal viability means the point in pregnancy when, in the professional judgment of the patient's treating health care practitioner, there is a significant likelihood of the fetus' sustained survival outside the uterus without the application of extraordinary medical measures.

The explanatory statement is as follows:

A vote "FOR" will amend the Nebraska Constitution to provide that all persons shall have a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions. Fetal viability is defined as the point in pregnancy when, in the professional judgment of the patient's treating health care practitioner, there is a significant likelihood of the fetus' sustained survival outside the uterus without the application of extraordinary medical measures.

A vote "AGAINST" will not amend the Nebraska Constitution in such manner.

Case No. S-24-647: Brooks' Challenge.

In case No. S-24-647, Catherine Brooks, D.O., filed an application for leave to commence an original action and a verified petition for writ of mandamus. An earlier application had been denied for a deficient verification, but Brooks cured the deficient verification and the application and the petition in the present case are positively verified as true and correct. Brooks challenges the Initiative. We granted leave to commence this original action on August 30, 2024. On September 3, we granted a petition for leave to intervene filed by three sponsors of the Initiative (the Sponsors). We also ordered this case to be consolidated with case No. S-24-654 for oral argument.

The relevant background recited herein is based on the application, petition, and exhibits to the petition. Brooks, a registered voter and resident of Lancaster County, is a practicing neonatologist who specializes in treating premature babies. She and others presented to Robert B. Evnen, Nebraska's Secretary of State, various objections to his announcement that he was certifying two ballot measures, including the Initiative, for the November 5, 2024, general election ballot. On August 27, the Secretary of State conveyed in writing that he would take no action on the objections.

Brooks asserts in her petition two causes of action. Brooks' first cause of action is that the Initiative violates article III, § 2, of the Nebraska Constitution, which requires in relevant part, that "[i]initiative measures shall contain only one subject." Without being comprehensive, attachments to the...